What is a Special Guardianship Order: everything you need to know

Special Guardianship Orders were introduced to bridge the legal gap between long-term fostering and adoption. Wherever possible, the courts have always sought permanence for “looked after children”. However, fostering and adoption did not cater appropriately in all circumstances for all looked after children.  The Government decided that an alternative legal status needed to be offered to children, offering greater security than long-term fostering but without the absolute legal severance from the birth family which adoption created. Special Guardianship Orders came into force on 30 December 2005. 

What is a Special Guardianship Order?

A Special Guardianship Order aims to achieve the following for a child and carer:

• It gives the carer a clear responsibility for all aspects of caring for the child and for taking decisions to do with their upbringing.
• It provides the foundation to build a lifelong permanent relationship between the child and the carer.
• It gives the child and the carer legal security.
• It enables the child to preserve the basic link with their birth family.
• It entitles the child and the carer to a full range of support services from the Local Authority, together with (where appropriate) financial support.

How does a Special Guardianship Order work?

A Special Guardianship Order is an Order appointing a person or persons to be a child’s special guardian.  Applications for such an Order can be made by an individual or jointly by two or more people to become a child’s special guardian.  Joint applicants do not need to be married.  Special guardians must be 18 or over.  The parents of a child may not become a child’s special guardian.  When considering making a Special Guardianship Order, the child’s welfare is the court’s paramount consideration.  The court will consider the Welfare Checklist set out in The Children Act 1989:

• The ascertainable wishes and feelings of the child concerned in light of their age and understanding.
• Their physical, emotional and educational needs.
• The likely effects of any change in their circumstances.
• Their age, sex, background and any characteristics of which the Court considers relevant.
• Any harm they have suffered or are at risk of suffering.
• The capability of each of the parents (and any other person/s the Court considers relevant) in meeting their needs.
• The range of powers available to the Court under the Children Act 1989 in the proceedings in question.

Who can apply for a Special Guardianship Order?

The following person or persons can apply for a Special Guardianship Order in respect of a child or children:

• Any guardian of a child
• A Local Authority foster carer with whom the child has lived with one year preceding the application
• Anyone who holds a Residence Order for the said child(ren)
• Anyone with whom the child(ren) has lived with for the last three out of five years
• When the children is in the care of the Local Authority, any person who has the consent of the Local Authority
• Anyone who has the consent of all those who hold parental responsibility for the child(ren)
• Any person (including the child) who has leave of the court to apply

You do not have to be married to make a joint application.

Any person who wishes to apply for a Special Guardianship Order must give three months written notice to the Local Authority confirming their intention to apply.  On receiving this notice, the Local Authority must prepare a Special Guardianship Report.  The court cannot make a Special Guardianship Order without receipt of this report.  The report will consider and detail the following:

• Whether the child has brothers and sisters and details of both parents
• The relationship a child has with other family members and the arrangements for the child to see or keep in touch with different family members
• Details of the child's relationship with his/her parents
• The parent/s' and the child's wishes and feelings
• The prospective Guardian's family composition and circumstances
• Parenting capacity
• Medical information on the child, prospective special guardian and the birth parent(s)
• An assessment of how a Special Guardianship Order would meet a child's long-term interests as compared with other types of order
• Support services

Before making a Special Guardianship Order, courts must consider whether or not to vary any existing s.8 Order (such as a Contact or Residence or Child Arrangements Order). Courts should also consider whether or not a Child Arrangements Order should be made when making a Special Guardianship Order.  An example of this would be to make an Order for a child to spend time with the birth parents.

What does a Special Guardianship Order do?

A Special Guardianship Order provides a special guardian with:

• Parental Responsibility for the child(ren) named in the Order, which can be exercised to the exclusion of anyone else with parental responsibility, apart from another special guardian.
• A special guardian can remove a child from the jurisdiction for up to a period of three months without the consent of the parents. 
• On making the Order, leave (“permission”) can be sought from the court to have the child(ren) known by a different surname. 
• A special guardian can appoint a guardian to care for the said child(ren) should they die.

The Order will ordinarily last until a child reaches the age of 18.

A Special Guardianship Order does not extinguish a birth parents’ legal parental responsibility and the child’s parents retain Parental Responsibility, meaning that a legal link remains between the child and his/her parents.  However, the parental responsibility conferred upon a special guardian overrides the birth parents’ parental responsibility. Birth parents do retain the right to consent - or not- to the adoption (or placement for adoption) of a child.

The role of the Local Authority

Local Authorities are required to make arrangements for the provision of special guardianship support services.  This includes:

• Financial assistance (means tested)
• Assistance with the arrangements for contact between a child, his/her parents and any relatives that the local authority consider to be beneficial
• This assistance can include cash to help with the cost of travel, entertainment, and mediation to help resolve difficulties on contact
• Respite care
• Counselling, advice, information and other support services
• Services to enable children, parents and special guardians to discuss matters, this might include setting up a support group
• Therapeutic services for the child

What is the difference between a Residence Order, Child Arrangements Order and a Special Guardianship Order?

A Special Guardianship Order provides certain “heightened” power to a special guardian, than that which would be held by someone with a Child Arrangements Order. 

When a Child Arrangements Order is made determining who a child should live with, all parties to that share equal parental responsibility.  Therefore no one can take action in respect of the child without the written consent of all persons with parental responsibility.  A person with a Special Guardianship Order can exercise their parental responsibility to the exclusion of all others (with the exception of another special guardian). 

A child can only be removed from the jurisdiction for up to a period of one month under the terms of a Child Arrangements Order that has determined where a child should live, but under a Special Guardianship Order, this can be up to three months.  If a special guardian wishes to remove a child from the jurisdiction for over three months, written permission should be sought from everyone with parental responsibility.  In the absence of agreement, a court application can be submitted with a view to a Judge deciding. 

Also, a parent or any other person (except another special guardian) cannot make any application to the court in respect of the said child(ren) without leave (“permission”) from the court. 

Can I apply for a Special Guardianship Order to be discharged?

An application can be submitted to the court to discharge or vary a Special Guardianship Order in certain circumstances.  Those who can make the application are:

• The special guardian or guardians
• The Local Authority in whose name a Care Order was in force with respect to the child(ren) before the Special Guardianship Order was made
• Anyone with a Child Arrangements Order determining where the child should live or Residence Order in respect of the children(ren) before the Special Guardianship Order was made
• With permission 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 permission of the court is required, the court may only grant permission if there has been a significant change in circumstances since the Special Guardianship Order was made. 

What are the cost involved?

Legal Aid is available for parents and family members, but is subject to an eligibility criteria. We can provide a free legal aid assessment. Whenever social services are involved, it is vital that you know your rights and have expert legal representation to make sure the rights of you and your family are protected. For more information, please contact our care proceedings specialists:

Huddersfield: 01484 483 800

Lynn Crabtree, Shelley McLachlan and Kate Machon

Halifax: 01422 339 600

Robert Scott