Applications for Special Guardianship Orders
This chapter should be read in conjunction with Permanence Planning Guidance.
RELATED NATIONAL GUIDANCELOCAL DOCUMENTS
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 see the 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 in relation to a Looked After Child will replace the Care Order and the Local Authority will no longer have Parental Responsibility.
However a Care Order 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.
For further details about the Special Guardianship as a permanence option for Looked After Children, see Permanence Planning Guidance.
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.
The following persons may apply without having to obtain the leave of the court:
- Any guardian of the child;
- Where the child is the subject of a Care Order or an Interim Care Order, any person who has the consent of the Local Authority;
- A local authority foster carer who is a relative of the child or with whom the child has lived for 1 year immediately preceding the application (even if the Local Authority does not consent);
- 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, providing the child has not ceased to live with the proposed applicant more than 3 months before the making of the application;
- Anyone who has the consent of all those with Parental Responsibility for the child.
A parent of a child may not apply to become their own child's Special Guardian.
Any other person (including the child) may apply for a Special Guardianship Order if s/he has obtained the leave of the court to make the application.
A person who is, or was at any time within the last 6 months, a local authority foster parent of a child may not apply for leave to apply for an SGO unless (s)he has the consent of the local authority, or (s)he is a relative of the child or the child has lived with him for at least one year preceding the application.
3. Parental Responsibility
The Special Guardian will have Parental Responsibility for the child and 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 3 months;
- The sterilisation of a child.
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 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 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 has granted leave to make an application and waived the notice period.
When Children's Services receive notice from an applicant or a request for a report from the Court, they should send written information about the steps they propose 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.
Local Authority foster carer applying without the support of the Local Authority
This type of non-agency application should be rare, as efforts should be made to encourage foster carers to work in partnership with Children's Services to meet the child's needs. When it does occur an independent worker will be appointed to complete the assessment. Financial support in these circumstances will be subject to means testing.
5. Approval of Special Guardianship for Looked After Children
Special Guardianship as the Permanence Plan for a Looked After child must be approved by the Designated Manager (Special Guardianship).
5.2 Special Guardianship Applications in Care Proceedings
Interim Guidance on Special Guardianship (Family Justice Council, May 2019) has confirmed that alternative potential carers should be identified at an early stage – including through pre-proceedings where possible and by convening a Family Group Conference. Nevertheless, identification of carers should not be as a result of parent's approval/disapproval but should focus on the child's interests.
However, there is recognition that some applicants may be identified, or come forward, late in proceedings and the court will need to give careful consideration with regard to a possible extension of the 26-week timescale. (See Care and Supervision Proceedings and the Public Law Outline Procedure).
Where a full assessment is undertaken, it is to be expected that this will usually require a 3-month time scale.
Assessments should be evidence-based and child-focussed. Before the assessment, the prospective carers should be provided with full information about:
- What the assessment will involve;
- The time and commitment needed from them;
- 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; any existing relationships they have with the child and 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 and until their 18th birthday.
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 family and friends' assessment are completed.
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. Planning Meeting
If the child is Looked After and the application has been agreed as 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.
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, the case must 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 Dudley Children's Services considers relevant).
- An assessment of the prospective Special Guardian's parenting capacity including:
- . Their understanding of, and ability to meet the child's current and likely future needs, including any needs arising from harm that the child has suffered;
- 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 Dudley Children's Services consider relevant, particularly in relation to contact between any such person and the child;
- Their ability and suitability to bring up the child until he/she reaches the age of eighteen.
Consideration of the proposed contact arrangements and the support needs of the child, parents and the prospective special guardian (see Section 11, Assessment for Support).
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.
7. Report to the Court
On receiving Notice of Intent of an application, or a request from the Court, the local authority must investigate and prepare a report for the Court about the suitability of the applicants to be special guardians.
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.
See Court Reports in Placement Order Applications and Adoption/Special Guardianship Guidance for the structure of the report, the information to be included and the issues to be addressed.
8. Discharge of Special Guardianship Order
A Special Guardianship Order can be varied or discharged on the application of:
- The Special Guardian;
- 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 was to live before the Special Guardianship Order was made;
- With the leave 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 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.
During any family proceedings in which a question arises about the welfare of a child who is subject to a Special Guardianship Order, the court may vary or discharge the Order in the absence of an application.
9. Special Guardianship Support
The local authority must make provision for a range of Special Guardianship support services.
Special Guardianship support services are defined as:
- Financial support (see Section 14, Financial Support);
- Services to enable children, Special Guardians and parents to discuss matters relating to special guardianship;
- Assistance including mediation in relation to contact between the child and their parents, relatives or significant others;
- Therapeutic services for the child;
- Assistance to ensure continuance of the relationship between the child and the Special Guardian, including training to meet any special needs of the child, respite care, and mediation;
- Counselling, advice and information.
Special Guardianship Support will be subject to the approval of the Designated Manager (Special Guardianship Support). Any proposed support plan that includes financial allowances will also need to be agreed by the Access to Resources and Placements Panel (ARPP).
The services described above may include cash assistance.
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, the local authority that looked after him/her has responsibility for providing support for the first 3 years after the making of a Special Guardianship Order. Thereafter the local authority where the Special Guardian lives will be responsible for the provision of any support required.
If a child was not Looked After, the local authority where the Special Guardian lives has the responsibility for Special Guardianship support.
Ongoing financial support which has been agreed before the Special Guardianship Order is made remains the responsibility of the local authority that agreed it.
10. Entitlement to Assessment for Special Guardianship Support
Where the child is Looked After or was Looked After immediately prior to the making of the Special Guardianship Order, the following people MUST receive an assessment at their request:
- The child;
- The Special Guardian or prospective Special Guardian;
- A parent (but only in relation to their need for support with contact and/or discussion groups);
Where the child is not Looked After or was not Looked After immediately prior to the making of the Special Guardianship Order, the following people MAY be offered an assessment of their need for Special Guardianship support services:
- The child;
- The Special Guardian or prospective Special Guardian;
- A parent.
In all cases, whether the child is looked after or not, the following people also MAY be offered an assessment of their need for Special Guardianship support services:
- A child of the Special Guardian;
- Any person with a significant ongoing relationship with the child.
If Dudley Children's Services decide not to assess in cases where they have discretion as above, they must notify the decision in writing, including reasons for the decision, to the person making the request.
11. Assessment for Support
The assessment should be based on the Assessment Framework under Working Together and include the following:
- The developmental needs of the child;
- The child's educational needs;
- The parenting capacity of the Special Guardian or prospective Special Guardian to meet the child's needs;
- Family and environmental factors that have shaped the life of the child and the capacity of the Special Guardian or prospective Special Guardian to respond to those experiences;
- Comment on how life with the Special Guardian might be for the child;
- Any previous assessment of the child or Special Guardian that is relevant;
- The needs of the Special Guardian or prospective Special Guardian and their family;
- The impact of the Special Guardianship Order on the relationship between the child, parent and Special Guardian.
Special Guardianship Support will be subject to the approval of the Designated Manager (Special Guardianship Support).
At the end of the assessment and once the necessary approval has been obtained, the social worker must inform the person requesting provision of its outcome, including:
- Information about the outcome of the assessment and the reasons for it;
- Where it relates to financial support, the basis on which this is determined;
- The services (if any) that Dudley Children's Services proposes to provide to help meet the child's needs;
- If financial support is to be paid, the amount and conditions attached.
If no need for ongoing support is identified, this should be recorded on the child's electronic record and the family should be informed in writing.
12. The Special Guardianship Support Plan
Where an assessment identifies the need for ongoing support services, a Special Guardianship Support Plan must be completed.
Other agencies, such as education and health, may need to be consulted about the contents of the Plan.
As a previously looked after child, the child subject to a Special Guardianship Order will be entitled to additional education support. This will be accessed through the designated teacher in the child's school. For further information, please see Education of Children in Care and Previously Looked After Children Procedure.
The Plan should be written in such a way that everyone affected can understand it, and should set out:
- The services to be provided;
- The objectives and criteria for success;
- Timescales for provision;
- Procedures for review;
- A named person to monitor the provision of services in accordance with the Plan.
Special Guardianship Support will be subject to the approval of the Designated Manager (Special Guardianship Support).
Once the necessary approval has been obtained, the social worker must send the proposed plan to the person requesting support, and allow 28 days for that person to make representations about the proposed plan. The social worker should also give information to the person concerned about who to contact to obtain independent advice and advocacy.
Where representations are received, they should be referred to the Designated Manager (Special Guardianship Support) to decide whether to amend or confirm the Plan. The allocated social worker must then write to the person concerned setting out the final Plan.
13. Review of Special Guardianship Support Plans
Special Guardianship Support Plans must be reviewed at least annually. Additional reviews must be arranged:
- If any change of circumstances may affect the need for support;
- At any stage of implementation of the support plan if Children's Services consider that a review would be appropriate.
The reviews may be a paper exercise where there is no change or a minor change in circumstances. However, if there is a substantial change of circumstances, e.g. a serious change in the behaviour of the child, it would normally be necessary to conduct a new assessment of needs.
Any change to the Special Guardianship Support Plan will be subject to the approval of the Designated Manager (Special Guardianship Support).
If Children's Services decide to vary or terminate the provision of support after the review, notice in writing must be given and the person concerned should be given 28 days to make representations.
14. Financial Support
Government guidance says 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.
The general principle should be that when a person seeks to make a permanent and substantial commitment to a child by means of Special Guardianship, this should generally include a willingness to meet the associated costs. 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.
Children's Services 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. Financial support cannot duplicate any other payment available to the Special Guardian.
Ordinarily one of the following criteria must be met before Dudley MBC will consider undertaking an assessment of need for a Special Guardianship Allowance:
- Immediately before the order being made, the child was looked after by the local authority for a period of at least 3 months and the Special Guardianship application is part of his/her care plan, confirmed through the review process;
- The child is subject to a Special Guardianship Order as part of the disposal of care proceedings, or as a direct alternative to care proceedings;
- The local authority supports the making of the Special Guardianship Order and the Designated Manager (Special Guardianship Support) agrees that the circumstances are exceptional.
The special guardian must, however, live in the United Kingdom.
If Dudley MBC opposes the special guardianship application, but the Court makes a Special Guardianship Order, the local authority will assess the applicant for eligibility for special guardianship allowance as if it had supported the application.
Looked After Children
It is recognised that in some circumstances, for children with whom Dudley Children's Services have been actively involved, financial support may be needed to enable permanence plans outside local authority care to be made.
If the child was looked after immediately prior to the granting of the order, Dudley MBC will continue to pay a Special Guardianship Allowance at the recommended minimum allowance for the current year (but without the additional payments for birthdays, holidays and Christmas) at the same rate that foster carers are currently receiving.
Non-looked After Children
In cases where the child was not looked after immediately prior to the order, the Special Guardian's means will usually be considered when ongoing financial support is being considered. They should therefore be asked to complete a Financial Assessment Form, which when completed should be passed to the Senior Admin (Adoption Team), who is responsible for carrying out means assessments.
Means may be disregarded in relation to:
- The initial costs of accommodating a child who has been Looked After;
- Recurring travel costs in contact arrangements;
- Any special case requiring greater expenditure due to illness, disability, emotional or behavioural difficulties or the consequences of the past abuse or neglect of a child previously looked after.
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 Looked After where the local the authority support the making of the Special Guardianship Order.
Once the means assessment has been carried out, the Senior Admin (Adoption Team) should send written notification of the outcome to the social worker, who must present this to the Access to Resources and Placements Panel (ARPP)for approval. This must set out proposals covering the issues listed in the next paragraph.
The social worker should then write to the Special Guardian setting out the amount of financial support agreed by the ARPP 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.
A copy of this letter should be sent to the Senior Admin (Adoption Team).
Where the Special Guardians were previously the child's foster carers - the local authority can maintain the fostering allowance for a transitional period of 2 years but with discretion to extend in exceptional circumstances.
The case will remain open to Children's Services – the plan will be a Child in Need Plan, with the only identified need being financial and the service provided being "Special Guardianship Order - Financial Support". The social worker should index the special guardianship support plan to the child's electronic social care record for future reference and review.
If the case remains open to a district team, the social worker will be responsible for providing the Senior Admin (Adoption Team) and Special Guardianship Support Worker (Adoption Team) with information for annual reviews.
Annual Review of Financial Support
Where Special Guardians are in receipt of financial support, the social worker responsible for monitoring the Special Guardianship Support Plan (usually the SG Support Worker in the Adoption Team) 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 relevant to the need for financial support.
The Assessment Form should be forwarded to the Senior Admin (Adoption Team) for consideration. If any change in financial support is considered appropriate, the recommended change should be forwarded to the Designated Manager (Special Guardianship Support) for a decision. 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, the social worker monitoring the support plan should send a reminder letter, giving 28 days notice of the suspension of payments if the information requested is not received.
15. 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 Designated Manager (Special Guardianship Support) 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.
16. 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.
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.