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Contents

1. Introduction
2. Who may Apply?
3. Parental Responsibility
4. The Circumstances in which a Special Guardianship Order may be Made
5. Planning and Assessment
6. Approval of Special Guardianship for Looked After Children
7. Report to the Court
8. Variation and Discharge of Special Guardianship Order
9. Special Guardianship Support
10. Special Guardian Duty on the Death of the Child
11. Special Guardianship Orders in International Cases
    
    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 can meet 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 also provides 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 see Education of Children with a Social Worker, Looked After and Previously Looked After Children Procedure.

Special Guardians have Parental Responsibility for the child and, whilst this is shared with the child's parents, the Special Guardian has the ability to exercise this responsibility without seeking permission from the parents.

A Special Guardianship Order made with respect to a child who is the subject of a Care Order or for an order for contact to a child in care discharges those orders.

A Care Order, however, does not automatically revoke a Special Guardianship Order although the Special Guardian's exercise of Parental Responsibility is restricted as Together for Children Sunderland has 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 Together for Children Sunderland, 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;
• 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 arrangements order as a person with whom the child is to live;
• Anyone with whom the child has lived for a period of at least three years (which need not be continuous, but must not have begun more than five years before, or ended more than three months before, the making of the application);
• A relative with whom the child has lived for a period of at least one year immediately preceding the application;
• Where the child is in the care of Together for Children Sunderland, any person who has the consent of Together for Children Sunderland;
• Any person who has the consent of all those with parental responsibility for the child;
• Any other person, aged 18 or over (other than a parent) may apply for a Special Guardianship Order if they have the leave of the court to make the application.

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. The Special Guardian must also take reasonable steps to inform the parents if the child dies (see Section 16, Special Guardian Duty on the Death of the Child).

In addition there are certain steps in a child's life which require the consent of everyone with Parental Responsibility or the leave of the court, for example:

• Causing the child to be known by a different surname; or

• Removing the child from the United Kingdom for longer than three months.

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.

For the avoidance of doubt, a child is any child or young person under the age of 18 years.

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 and following an assessment by the local authority. 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 Together for Children Sunderland of their intention to apply. In relation to a Looked After Child, the notice will go to the local authority looking after the child. In all other cases, the notice will be sent to Together for Children Sunderland 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 has granted leave to make an application and waived the notice period.

Where Together for Children Sunderland 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 and Assessment

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 Together for Children Sunderland considers relevant). Where the assessment identifies that the child requires services from an agency other than Children's Social Care, the social worker should consult with the relevant Integrated Care Board (ICB) or Local Education Authority;
• An assessment of the prospective Special Guardian's parenting capacity including:
  1. Their medical history; DBS checks, references and other statutory checks; any previous assessment undertaken in respect of the prospective special guardian; any likely impact the Special Guardianship Order may have on relationships between the child and the parent;
  2. 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;
  3. 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 Together for Children Sunderland consider relevant, particularly in relation to contact between any such person and the child;
  4. Their ability and suitability to bring up the child until the child reaches the age of eighteen.
• An Assessment of the proposed contact arrangements and the support needs of the child, parents /those who have parental responsibility and the prospective special guardian.

6. Approval of Special Guardianship for Looked After Children

6.1 General

If the child is Looked After and the application has been agreed as part of the child's Permanence 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 Looked After child must be approved by the Designated Manager (Special Guardianship).

6.2 Special Guardianship Applications in Care Proceedings

Best Practice Guidance on Special Guardianship (Public Law Working Group, 2021) notes that where there are safeguarding or welfare concerns about a child, the statutory guidance is clear about the importance of local authorities engaging with the parents and the wider family network at an early stage through a Family Group Conference: the FGC should be used to share information, resolve possible disputes and conflicts with the local authority and to address long - standing tensions within the family. The pre-proceedings phase of the Public Law Outline (PLO) provides an important opportunity to engage the parents and family members in discussions about the future care of the child.

In assessing the appropriateness of any potential applicants, the local authority must assess whether any option would not be consistent with the child's welfare, or, would not be reasonably practicable.

Whilst Relaunching the PLO made clear the importance of aiming to meet the statutory requirement of completing each public law case within 26 weeks, Timetabling and timescale for full Family and Friends Assessments, (Family Justice Council) provides that:

‘This document serves to remind social workers, Guardians, lawyers, and the judiciary regarding the process required to be incorporated into any timescales for a full Family and Friends Assessment to be done to an appropriate standard, so as to provide for a sufficient (usually 12 week) assessment period to undertake the complex requirements inherent in any full assessment. Delay for children is always to be avoided, but nothing in the Public Law Outline, primary legislation, or jurisprudence requires corners to be cut in coming to a safe evidenced conclusion, that places the welfare of the child at the heart of any recommendation or decision’.

See also Care and Supervision Proceedings and the Public Law Outline Procedure.

Assessments should be robust, evidence-based and child-focused. Before the assessment, the prospective carers should be provided with full information about:

1. What the assessment will involve;
2. The time and commitment needed from them;
3. A letter should be sent explaining the expectations of the carers and what they should think about during the process.

The assessment should carefully balance the strengths families may have: consider any existing relationships they have with the child; explore their parenting experience; the significance for the child of remaining within their family and network, against the carers' capacity to meet the assessed needs and the challenges that a particular child may bring on a long-term basis, (including any additional needs as a result of significant harm or neglect they may have experienced), and until their 18th birthday.

In recognising that each situation will be looked at on a case-by-case basis, an interim placement with the proposed special guardians may be appropriately considered to both establish relationships between the child and special guardians and confirm the applicants' ability to carry out their parenting responsibilities, meet the needs of the child and promote their welfare and best interests.

The child's Looked After Review should make a recommendation regarding the outcome of the Care proceedings for the child's Care Plan and this should be approved by the Designated Manager (Special Guardianship).

Final recommendations should not be made until the essential tasks and activities for a full Special Guardianship Order assessment are completed.

A Supervision Order should not be sought as a means to ensure support and services are provided by the local authority (or as a form of 'safety net' for a child). Where considered necessary, the report should detail the reasons why such an Order is required.

The prospective carers should have time to read the assessment report before it is filed and comment on the report.

Following the filing of the report, the prospective carers should be given the opportunity to seek independent advice and legal advice to understand fully the implications of any Orders made and if need be, make applications of their own.

A Special Guardianship Support Plan will need to be provided around the time of filing the Special Guardianship Order report and its recommendation, detailing the support to be provided to the carers and the child and include contact for the child with their birth parents. The potential applicants should be able to seek legal advice about the Support Plan.

6.3 Placement before a Special Guardianship Order (SGO) is Granted

The Best Practice Guidance (2021) (Public Law Working Group) states that where there is little or no prior connection/relationship between the child and the prospective Special Guardian, it is very likely to be in the child’s best interests to be cared for on an interim basis by the prospective Special Guardian in order to establish a meaningful relationship with the child.

Where the interim plan for the placement of the child with the proposed Special Guardian is endorsed by the court, a timetable will need to be prepared that enables the proceedings to be concluded. That timetable will set out:

• The legal framework (as set out in Sub-appendix B) that authorises the placement of the child with the prospective Special Guardian until either the SGO is made or the care proceedings are concluded by other means;
• The period of time required for a robust evidence base to be established about the quality of care of the child by the prospective Special Guardian that will inform the court report. There are a number of factors that will need to be taken into account in agreeing this time period, such as:
  1. Any prior parenting experience by the prospect Special Guardian of the child;
  2. The identified needs of the child and any issues which have been identified and addressed as the child settles into the placement;
  3. Any wishes or feelings the child may have in light of their age and understanding;
  4. Any specific training or support that might be needed by the prospective Special Guardian or the child;
  5. The relationship that the prospective Special Guardian has with the parents of the child and other family members, as well as the significance of those relationships. Both from the child’s point of view and those of the prospective Special Guardian, the on-going relationship within the family must be explored for the benefits and, where they exist, the risks.

An agreed plan must be completed on a case-by-case basis that enables each of the issues fully and realistically to be addressed. As the relationship between the prospective Special Guardian and the child develops, specific questions and issues will arise that will further inform the detail of what needs to be explored.

Alongside the plan, the court will draw up a timetable for the outstanding issues that need to be resolved before a final order is made. As the interim guidance makes clear, that timetable should be dictated by the facts of the particular case. It is anticipated that this will be no more than 12 months from the interim placement of the child with the prospective Special Guardian. Where the evidence indicates that this may be through an SGO, this will include the preparation and submission of a report to the court which is evidence-based and compliant with the Special Guardianship Regulations 2005, as amended. In drawing up the timetable, the parties and the court should consider:

• Whether the prospective Special Guardian should make a formal application (if they have not already done so) for an SGO; and, if so, whether leave to make that application is required;
• Alternatively, the court will, in due course, subject to the court report prepared by the local authority, make an order of its own motion.

If the court approves an extension, consideration will need to be given to the legal framework. It may not be possible for the child to be placed pursuant to an interim care order under the current regime imposed by Regulation 24 of The Care Planning, Placement and Case Review (England) Regulations 2010. In these circumstances, an alternative approach would be placement pursuant to section 8 of the Act: a Child Arrangements Order and an Interim Supervision Order to provide support for the placement, particularly during any transition period. The court should bear in mind the consequences arising out of any change to the legal framework, particularly if it impacts upon the child’s status as a looked after child pursuant to section 22 of the Act (since April 2016 children cared for by special guardians who were ‘looked after’ immediately before the Special Guardianship Order was granted have been eligible for the Adoption Support Fund (ASF). The ASF provides funds to local authorities and regional adoption agencies to pay for essential therapeutic services for eligible adoptive and special guardianship order families).

7. Report to the Court

The social worker or social workers preparing the Court report should be suitably qualified and experienced. All assessments/suitability reports must comply with the schedule set out in regulation 21 of the Special Guardianship Regulations 2005 (as amended 2016). See: Court Reports in Placement Order Applications and Adoption/Special Guardianship Guidance, Special Guardianship - Matters to be Dealt with in Report for the Court.

(Where local authorities commission assessments from independent social workers, it is essential that there is clarity about the standard of the assessment commissioned before it is filed).

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

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

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 is already before the court in another format, Together for Children Sunderland is not required to start from scratch. Instead, Together for Children Sunderland should be directed to file a report, which will fulfil the requirements 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.

8. Variation and 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;
• Any person who is named in a Child Arrangements Order as a person with whom the child is to live;
• With the leave of the court:
  • Any parent or guardian 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

See Special Guardianship Support Policy (2020/2021).

From 1 September 2021, the School Admissions Code provides that children being raised by family and friends carers under a Special Guardianship Order or Child Arrangements Order, who struggle to get a school place during the year, will be supported in finding one.

10. 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.

11. Special Guardianship Orders in International Cases

Identifying potential long-term carers for the child within the family may include those who are either resident in, or nationals in, overseas countries. Special guardianship can be considered in placing a child outside of the jurisdiction. Consideration must be given to how assessments are carried out in a legally compliant and culturally relevant manner. Thought should be given to:

• The status of special guardianship in that country and other legal matters;
• The relevant matters associated with the care of children in that country: permanent, stable and secure family life; safeguarding; education and health; and specifically how all of these relate to the personal living circumstances of the host family and their need for support services, including financial and therapeutic support and contact between family members including those resident in the UK;
• Contacting local agencies in that country for guidance on the support that maybe offered.

In advance of the child being placed, a plan will need to be agreed about how the placement will be supported and what the contingency arrangements are for the child.

Best Practice Guidance: Special Guardianship Orders (Public Law Working Group, 2021) provides that if the proposed carers appear to be viable, time may be needed for Children and Families Across Borders (CFAB) to carry out an assessment.

Note:

1. Contracting states to the 1996 Hague Convention will be better placed to offer co-operation and support than some other countries, (see HCCH);
2. Social workers should carefully explore the local authority's ability to provide financial support particularly after an initial 3 years. when 'out-of-area placements' are abroad.

See also Children and Families Across Borders (CFAB).

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