What you need to know
Special guardianship is one legal route to permanence, providing a legal status for children for whom adoption may not be appropriate. It offers an option for:
- children who require care outside of their birth family but have and wish to retain strong links to the birth family
- minority ethnic communities that have religious and cultural difficulties with adoption
- unaccompanied asylum-seeking children who may need secure, permanent homes, but have strong attachments to their families abroad.
Special Guardianship Orders (SGOs):
- give the special guardian full parental responsibility with some limitations. For example, written consent from all those with parental responsibility must be given if the child is to be known by a different surname or to remove a child from the UK for longer than 3 months (s.14C(4) CA 1989)
- removes parental responsibility from a local authority if the child has been looked after
- provide a firm foundation on which to build a lifelong legally secure permanent relationship between the child and their carer, offering greater stability than a child arrangement order. Birth parents may apply to the court for a change in contact or in relation to specific issues but they cannot challenge the order itself unless given leave to do so by the court
- preserves a link between the child and their birth family
- are accompanied by access to a full range of support services, including where appropriate, financial support.
People who can apply for an SGO include:
- any guardian of the child
- 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 arrangement order
- any person who has the consent of the local authority (for children in the care of the local authority)
- a relative with whom the child has lived for one year immediately preceding the application (connected carers)
- anyone whom the child has resided with for three out of the last 5 years
- anyone who has the consent of all those with parental responsibility for the child
- anyone with leave of the court to apply
A Court may also make an SGO in any family proceedings if it considers one should be made – even if no application has been made by the local authority. This is subject to receiving an s.14A special guardianship report from the local authority.
Those applying for a SGO must give prior (3 months) written notice of their intention to make an application to:
- if the child is looked after by a local authority, to that local authority
- otherwise to the local authority where the child ordinarily resides.
The Adoption and Children Act 2002 provides the legal framework for special guardianship under the Children Act 1989.
On 29th February 2016, the Special Guardianship (Amendment) Regulations (2016) amended the Schedule to the Special Guardianship Regulations (2005). The amendments deal with issues such as:
- the reports local authorities prepare for court in applications for SGOs, in particular:
- the need for an assessment of the current and past relationship of the child with the applicant special guardian
- any harm the child has suffered and the risk of future harm from child’s parents or others
- child’s current and future needs
- the nature of child’s relationship with prospective special guardian at the time of assessment and in the past
- parenting capacity of prospective special guardian
- the requirement for local authority to provide support services for special guardians
After national consultation and an expert advisory group updated statutory guidance was issued in relation to the use of SGOs and came into force in February 2016.
In addition, the Children and Social Work Act (2017) requires that permanency planning, including SGOs must consider how the long-term plan for the child will meet current and future needs. The Act also sets out a duty of LAs in relation to previously looked after children for promoting educational achievement.
- Department for Education (2017) Special guardianship guidance. London
The Schedule to the 2005 Regulations, as amended by the 2016 Regulations, sets out in full the matters to be addressed in the SGO court report in respect of both the child and the child’s family. Practitioners are expected to cover every point in the schedule.
The case of Cheshire East Borough Council v PN & Ors (Flawed Local Authority Assessments)  EWFC 20 is an example of the court adjourning a final hearing because of ‘inadequate and fundamentally flawed’ social work assessments undertaken in relation to wider family members (see RiP Case Law Summaries March 2017 for a summary of the learning points from this judgment). This case brings to light the importance of analytical, evidence based assessments.
The information that must be included within the SGO court report, as specified by the 2016 Regulations, includes:
- the child’s needs (current and future), their background and family history
- the carers understanding of and ability to meet the child’s current and future needs (until the age of 18)
- the nature of the relationship between the guardian and the child (if relevant) and the impact of SGO on the relationship between the guardian and the birth family
- each potential carers’ ability to understand any risk to the child and how to protect the child from current or future risk of harm including those identified risks posed by the child’s birth parents or other relatives
- the proposed contact arrangements (including ability to manage contact safely)
The assessment of the applicants will also include detailed statutory checks such as local authority checks; employer references; a Disclosure and Barring Service check; a health assessment and a financial assessment.
The assessment of a prospective guardian should follow the principles of an analytical assessment. All information should be rigorously ‘evaluated, and its accuracy and consistency checked’, identifying the key issues that are relevant for each case and each child. Good practice in assessments is set out at paragraph 35 to 37 of the statutory guidance Working Together to Safeguard Children (2015). Management of risk is dealt with in paragraph 47 of the guidance. Also see the principles of assessment in the Assessment section of this website.
SGO assessment of support
The regulatory framework requires local authorities to make provisions for support services for special guardians. Services that can be provided are wide ranging and can take the form of counselling, support for contact with birth families, therapeutic services, parenting courses and support (including respite care), financial support (including one-off cash payments).
Where the local authority carry out an assessment of a person’s needs for special guardianship support services they must consider:
- The developmental needs of the child
- The parenting capacity of the proposed special guardian
- The family and environmental factors that have shaped the life of the child
- What the life of the child might be like with the proposed special guardian
- Any previous assessments undertaken in relation to the child
- The needs of the proposed special guardian and of their family
- Where is appears to the local authority that there is a pre-existing relationship between a proposed special guardian and the parent of the child, the likely impact of a SGO upon the relationship
Local authorities are not only required to provide services but also to monitor, evaluate and review these services.
The local authority must prepare a plan if –
- they propose to provide special guardianship support services to a person on more than one occasion and
- the services are not limited to the provision of advice or information.
It is important that all services that are to be provided are agreed in writing in advance of the granting of the SGO. Support plans should also include a clear contingency plan to enable special guardians to access support should difficulties arise at a later stage. Not all guardians require support at the time the SGO is made, but may do so later as difficulties emerge.
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 – i.e., the needs, background and relationship of both child and guardians are likely to be different than for a child living with their birth parents.
Supervision Orders or Family Assistance Orders
The use of Supervision Orders alongside SGOs has been the subject of a letter from Michael Keehan QC, High Court Judge, Family Division to the Local Family Justice Boards. The main issue is the apparent use of such orders to ensure support is provided to the guardian – this should instead be included in the local authority SGO support plan.
“I discovered last week that in some care centres SGOs are commonly made side by side with Family Assistance Orders or Supervision Orders. Save in exceptional circumstances (a) FAOs or SOs should not be made to coerce a LA to provide support to the SGO. All such matters should be contained in the SGO Support Plan and (b) a perceived need to provide support to or monitoring of special guardians by means of a FAO or SO would appear to contraindicate the making of an SGO in the first place.” (March,2017)
Sector guidance is available to support practitioners conducting special guardianship assessments. An example is the ‘Guidance notes for Connected Person/Family and Friends Report (Form C)’ from CoramBAAF.
Bowyer S and Wilkinson J (2015) Impact of the Family Justice reforms on front-line practice phase two: Special guardianship orders. Evidence scope. DfE, London
Bowyer S, Wilkinson J, Tapsfield R, Gadsby Waters J and Corrick Ranger H (2015) Special guardianship: qualitative case file analysis. Research report. DfE, London
Cafcass (2015) Qualitative case file review of special guardianship orders. Cafcass, London
DfE (2015) Special guardianship review: report on findings. DfE, London
Selwyn J, Wijedasa D and Meakings S (2014) Beyond the Adoption Order: challenges, interventions and adoption disruption. Research Report. DfE, London
Wade J (2015) Special guardianship: Strategic Briefing. Research in Practice. Dartington
Wade J and Simmonds J (2014) Investigating Special Guardianship: experiences, challenges and outcomes. DfE, London
Wilkinson J and Bowyer S (2017) The impacts of abuse and neglect on children; and comparison of different placement options: Evidence Review. DfE, London