4.17 Special Guardianship
This chapter was amended in September 2014 to reflect the introduction of Child Arrangements Orders which are ‘Section 8 Orders’ (Children Act 1989) that replace Contact Orders and Residence Orders. Existing Residence Orders/Contact Orders will not change if there is a pre-existing order.
Special Guardianship offers a further option for children needing permanent care outside their birth family. Special Guardianship is a legal status that 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. Special Guardianship Orders are likely to replace the use of Child Arrangements Orders in many cases in that they offer greater stability and security to a placement.
Special Guardianship will also provide an alternative for achieving permanence in families where adoption, for cultural or religious reasons, is not an option.
Special Guardians will have Parental Responsibility for the child until the Order is discharged. 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, the making of a Care Order on a child who has a Special Guardian will not automatically discharge the Special Guardianship Order.
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:
- Any guardian of the child;
- A local authority foster carer with whom the child has lived for one year immediately preceding the application;
- Anyone who holds an existing Residence Order or a Child Arrangements Order with respect to the child or who has the consent of all those in whose favour an existing Residence Order or Child Arrangements Order is in force;
- Anyone with whom the child has lived for three out of the last five years;
- Where the child is subject of a Care Order, any person who has the consent of the Local Authority;
- Anyone who has the consent of all those with Parental Responsibility for the child;
- Anyone, including the child, who has the leave of the court to apply.
The parents of a child may not become that child's Special Guardians.
The Special Guardian will have Parental Responsibility for the child until the Order is discharged and will have clear responsibility for the day-to-day decisions about caring for the child. The child's parents will also 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.
In addition there are certain steps in a child's life which require the consent of everyone with Parental Responsibility, for example:
- The change of name of the child;
- The removal of the child from the United Kingdom for longer than three months;
- The sterilisation of a child.
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. The welfare of the child is the court's paramount consideration in all cases.
Any person applying 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 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.
Where the local authority 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 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.
Where notice has been received that an application for Special Guardianship is to be made or has been made in relation to a child who Looked After, a member of staff in the Children's Placement Service will be allocated for the purposes of the special guardianship application. If the child is not Looked After, the case will be allocated to a worker from the Joint Adoption Service.
The social worker or social workers preparing the report should be suitably qualified and experienced. Court timescales will need to be clarified.
The allocated worker should convene a Permanency Planning Meeting, chaired by the Head of the Children's Placement Service (for Looked After Children) or the Head of the Joint Adoption Service (for all other children). Where necessary to avoid any delays occurring, the Service Managers will cover the chairing responsibilities for each other.
The Permanency Planning Meeting must cover the following issues:
- Background history;
- Legal context (seeking the views of Legal Service as and when required;
- Outcomes of other relevant assessments/reports, if any;
- Discussion of any pre-existing plan, if appropriate;
- The child's needs, wishes and feelings;
- The wishes and feelings of the carers, parents and significant others;
- The view of the local authority;
- The likely support needs of the child and proposed special guardian (including their financial needs);
- Any contact arrangements/issues;
- Payment of Court fees;
- Actions (with timescales) to be taken forward;
- Possible date for meeting to be reconvened.
As well as the Service Manager as Chair, the participants at the Permanency Planning Meeting will be:
- The allocated worker;
- The team manager;
- The legal representative (if required);
- A minute taker.
It is for the Chair to decide, in consultation with the allocated social worker, how best to report the views of the child, parents and proposed special guardian to the meeting and how best to report back to them the outcome of the meeting. Generally they will not be invited to attend the meeting although the Chair may decide in certain circumstances that it is appropriate to invite any or all of them.
The Court report will be written by the allocated social worker from Children's Placement Service - where the child is Looked After - or the Joint Adoption Service - for other cases. The social worker or social workers preparing the report should be suitably qualified and experienced.
See Court Reports in Adoption/Special Guardianship Guidance for a full list of the matters to be included.
A template is available.
All reports must be approved by the Designated Manager (Special Guardianship).
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 with an existing Residence Order or Child Arrangements Order in respect of the child before the Special;
- 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.
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.
The local authority must make provision for a range of Special Guardianship support services.
Special Guardianship support services are defined as:
- Financial support (which may include the payment of Court fees);
- Services to enable children, Special Guardians and parents to discuss matters relating to the arrangements for the child;
- 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.
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 the child has responsibility for providing support for the first three years after the making of a Special Guardianship Order.
If a child is 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 so long as the family meet the criteria for payments.
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.
The following people MAY be offered an assessment of their need for Special Guardianship support services:
- The child (if not looked after);
- The Special Guardian or prospective Special Guardian (where the child is not or has not been looked after);
- A parent (where the child is not or has not been looked after);
- A child of the Special Guardian (whether the Special Guardianship child is looked after or not);
- Any person with a significant on-going relationship with the child (whether the child is looked after or not).
If a local authority decides 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.
The assessment should be based on the Assessment Framework and include the following:
- The developmental needs of the child;
- The parenting capacity of the Special Guardian or prospective Special Guardian;
- Family and environmental factors for the child;
- Comment on how life with the Special Guardian might be for the child;
- Any previous assessment that is relevant of the child or Special Guardian;
- 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.
Where the child concerned is Looked After, the child's social worker and the Children's Placement Service worker should carry out the assessment jointly before submitting their report to the Court.
Where a child is not Looked After, the allocated social worker from the Joint Adoption Service will complete the Special Guardianship Support Assessment, if required, and Plan, if required (see below).
Where an assessment identifies the need for ongoing support services, a Special Guardianship Support Plan must be completed (see Section 8.3, The Special Guardianship Support Plan).
At the end of the assessment, where the social worker has identified a need for support, the approval of the relevant Service Manager must be obtained before taking any further steps. Where this includes financial support, must be referred to the Budget Management Panel before it is sent to the Special Guardian.
Once the necessary managerial 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 the Local Authority proposes to provide;
- If financial support is to be paid, the amount and conditions attached.
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.
The Plan should set out:
- The services to be provided;
- The objectives and criteria for success;
- Procedures for review;
- A named person to monitor the provision of services in accordance with the Plan.
The Plan must have the approval of the relevant Service Manager and, where it includes financial support (see Section 8.5, Financial Support), it must be approved by the Budget Management Panel before it is sent to the Special Guardian.
Once the required 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 back to the Head of Service/Panel to decide whether to amend or confirm the Plan. The social worker must then write to the person concerned with the final Plan.
The plan will be part of the Court report for the special guardian.
Special Guardianship Support Plans must be reviewed taking into account the following:
- Any change of circumstances affecting the support;
- At whichever stage of implementation of the plan is considered most appropriate;
- In any event at least annually.
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.
All annual reviews of plans which include financial support will be referred to the Head of the Joint Adoption Service for a decision to be made.
If the local authority decides 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. Any representations made should be taken into account before a final decision is made in relation to a revised Plan.
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.
The local authority 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. (It may be advisable to contact the CAB to advise special guardians of their entitlement.)
The Special Guardian's means will usually be considered when ongoing financial support is requested. They should therefore be asked to complete a Financial Assessment Form, which when completed should be passed to the Finance Officer responsible for carrying out a means test.
Once the means test has been carried out, the proposed financial support should be referred to the Budget Management Panel for approval. A letter will then be sent to the Special Guardian setting out the amount of financial support agreed 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 Finance Officer.
Means may be disregarded in relation to:
- The initial costs of accommodating a child who has been looked after - set up grant;
- 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;
- Where the Special Guardians were previously the child's foster-carers - the local authority can maintain the fostering allowance for a transitional period of two years but with discretion to extend if necessary.
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.
Where Special Guardians are in receipt of financial support, the social worker responsible for monitoring the Support Plan 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.
The Assessment Form should be forwarded to the Finance Officer for consideration. If any change in financial support is considered appropriate, the recommended change should be forwarded to the Head of the Joint Adoption Service for consideration.
All annual reviews of plans which include financial support will be referred to the Head of the Joint Adoption Service for a decision to be made.
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.
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.