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Ask the family lawyer » What is a Special Guardian? - logo
September 13, 2007

What is a Special Guardian?

S.115 of the Adoption & Children Act 2002 amends the Children Act 1989 by inserting new provisions to deal with Special Guardianship Orders (SGOs) (S. 14).? These orders are aimed at meeting the needs of children for whom adoption is not appropriate (whether because of age, race, behavioural difficulties etc) and who cannot live with their birth parents but would benefit from a legally secure placement.? SGOs do not replace residence orders but allow a more robust order in terms of bringing more security and support while maintaining the link with the birth family.

The paramountcy principle applies and the relevant welfare checklist is that contained within the Children Act 1989.

The difference in the SGO is that the Special Guardian (SG) obtains Parental Responsibility (PR) for the child and is entitled to exercise that responsibility to the exclusion of any other person with PR.? However, the SG cannot affect the situations where consent of all with PR is required (eg sterilisation etc) or any rights the birth parent has in relation to adoption or placement for adoption.

Who can apply for a SGO?

-?The child?s guardian;
-?Any person with a residence order in respect of the child;
-?Any person with whom the child has lived for at least 3 out of the last 5 years;
-?If the child is in Local Authority (LA) care, any person with consent from the LA;
-?Anyone who has consent from all those with PR;
-?Any LA foster carer with whom the child has lived for at least 1 year preceding the application;
-?Anyone else with leave of the court.
Applicants must be over 18, not the natural parents, and must give 3 months? written notice to the LA of their intention to apply for such an order.? There can be more than one Applicant.

Upon considering whether or not to make a SGO, the court must have particular regard to:

-?the nature of the proposed application;
-?the applicant?s connection with the child;
-?any risk? of disruption to the child?s life as a result of the proposed application and possible resulting harm;
-?if looked after by the LA, the future arrangements and wishes and feelings of the child?s parents.

A Guardian will also be appointed.

The LA, once given written notice of the intended application, are under a duty to investigate and must prepare a report on the suitability of the Applicants as a Court cannot make a SGO without such a report.

Such report must deal with? -

-?the suitability of the Applicant(s) to be a special guardian(s);
-?all matters set out in the schedule;
-?any matter which the LA considers relevant.

The Court can direct such a report within proceedings and does not need to wait for an application to be made.? Once a direction is given, the LA is under a duty to provide the report and can make arrangements for any person they consider fit to conduct the investigation and prepare the report.?

When considering whether or not to make the order, the court must give the child?s welfare paramount consideration, the delay principle and the welfare checklist (CA 1989)

The Court, on the making of a SGO must consider whether any contact order should be made or whether any existing S.8 order needs to be varied or discharged. The Court can also :-

-?make directions as to how the order is to be carried out;
-?impose conditions which must be complied with by any person with whom the child is living;
-?make any incidental, supplemental or consequential provisions as the court thinks fit.

Only with the permission of the court can the SG cause the child to be known by a new surname or be taken out of the jurisdiction for more than 3 months.

The LA are not the applicants but must consider the issue within care proceedings at an early stage as the notice still has to be in writing three months before the application can be made.

Once a SGO is made, any disputes between the parents and the SG remain between them and contact can be dealt with by the usual private law route.? The LA will only become involved if the court requires reports or if concerns arise leading to care proceedings.

Special Guardianship Support Services
S. 14F(1)? places a duty on every LA to make arrangements in their area to provide Special Guardianship Support services, including counselling, advice and information.

The Special Guardianship Regulations 2005 (SI 2005 No. 1109), Regulation 3(1) identifies prescribed services as:

a)?Financial support

-?may? be paid to facilitate a? person to become a SG where the LA thinks such payment? is necessary for the welfare of the child or to support the continuation of such arrangements;

Or where the LA considers

-?it is necessary to ensure that the person can look after the child;
-?that the child needs special care which requires greater expenditure then would otherwise be the case because of illness, disability, emotional or behavioural problems of the consequences of past abuse or neglect;
-?appropriate to contribute to legal costs;
-?appropriate to contribute to the expenditure necessary? for purposes of accommodating and maintaining the child? and necessary for the purposes of looking after that child.

Financial support can include remuneration only to former foster carers and may only be made if the decision to include it is taken before the order is made and the LA thinks it is necessary and it ceases to be payable after 2 years unless there are exceptional circumstances.

Financial support can be given by periodical payments or as a single payment

Financial support ceases in certain circumstances:?

?- child no longer living there;
?- child ceases full time education and commences employment;
?- child attains the age of 18 or finishes full time education.

If periodical payments are to be made, the SG must inform the LA immediately of any change of address or change in circumstances (including financial) and complete an annual statement of finances.

The LA can impose further conditions it considers appropriate, suspend or vary or terminate payments or seek to recover all or part of the support paid.

All changes in circumstances must be made in writing immediately.

b)?Services to enable groups of relevant children, SGs, prospective SGs and parents of relevant children to discuss matters pertaining to SGO;

c)?Assistance, including meditation services in relation to arrangements for contact between relevant child and parent or any other person with whom child has a relationship which appears to be beneficial;

d)?Therapeutic needs for relevant child;
e)?Assistance for the purpose of ensuring the continuation of the relationship between child and special guardian (including training, respite care (unless accommodation when it must be provided under S.23 or S.59 of the Children Act 1989) and mediation).

The LA has a duty to assess the following people if they request an assessment to see if they are eligible for support:

-?relevant child who is or was looked after by the LA;
-?Special Guardian or prospective SG;
-?parent of relevant child;
-?a person mentioned? in s.14F(a) to (c)
-?child of? a SG;
-?any person whom the LA considers to have a significant and ongoing relationship with the child.

The local authority is required to carry out an interview of the person for whom SG support services are being assessed and if that is a child, interview the SG / prospective SG or any other appropriate adult.? The local authority must also consult the local health authority or education authority if it appears that there may be a need for them to provide services.

When carrying out the assessment the LA is under a duty to consider the following factors:

-?development needs of the child;
-?parenting capacity of the SG;
-?family and environmental factors that have shaped the life of the child;
-?what the life of the child might be like with the SG;
-?any previous assessment carried out;
-?needs of the SG and family;
-?likely impact of the SGO if there is a pre-existing relationship
When assessing financial needs (but not for legal fees or any application to vary or discharge the SGO):

-?financial resources available if the child lived with the SG;
-?amount required in respect of reasonable outgoings and commitments (excluding needs of child);
-?financial needs and resources of the child.

The LA has a discretion to disregard any of the above when considering initial cost of accommodating child, recurring costs for travel for child and related person or special care of any looked after child.

The same applies when considering an element of remuneration.

Once a decision has been taken notice must be given in writing to the relevant person ? with reasons for the decision.? It must include

-?the method of determination of the amount of financial support to be paid;
-?if periodical, frequency and period of payment;
-?if single payment, when it will be paid;
-?whether there are any conditions, the date they are to be met by and the consequences of failing to meet those conditions;
-?arrangements and procedure for review, variation and termination;
-?responsibilities of the LA? and the SG.


Further Reference Materials

DfES guide on Special Guardianship:

Special Guardianship Regulations 2005 SI 1109/2005


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