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NOTE: This information explains your legal position if social
services are concerned about your child’s welfare and are considering
special guardianship
proceedings. Written mainly for parents and carers, but the information in
it is also for other people, including other family members, who are
involved in the welfare of a child and may become involved in
special guardianship
proceedings.
For specialist legal advice
we recommend you
seek the professional assistance of a experienced Solicitor.
A Guide
Statutory Instrument 2005 No. 1109
The new
provisions, provided for in the Adoption and Children Act 2002 (the Act),
came into force on 30
Dec 2005.
Special
Guardianship Orders
What is Special Guardianship (SG)?
»
What are the Regulations and Guidance?
»
Why was
SG introduced?
»
When might SG be the preferred
option?
»
Who can apply to be a Special Guardian?
»
What is the process?
»
Section 115 of the Act introduces a new
legal status for non-parents who are, or wish to care for children in a
long-term, secure placement.
The concept of a special guardianship
order (SGO) tends to lend itself to 'looked after' children but it can
equally be of relevance to a non-looked-after child who, for example, is
cared for by relatives. The article provides detail on applying for an SGO,
the key features of a SGO, special guardianship support services, the
effects of an SGO and how to vary and discharge an SGO. See February [2006]
Fam Law for the full article.
note:
» Back to the top
of page
1. What is Special
Guardianship
The Adoption and Children Act 2002 introduces a
completely new court order, Special Guardianship, intended to provide
another option for legal permanence for children who cannot grow up with
their birth families.
A Special Guardianship Order gives the special
guardian legal parental responsibility for the child which is expected to
last until the child is 18. But, unlike Adoption Orders, these orders do not
remove parental responsibility from the child’s birth parents, although
their ability to exercise it is extremely limited.
In practice, this means that the child is no longer
the responsibility of the local authority, and the special guardian will
have more clear responsibility for all day-to day decisions about caring for
the child or young person, and for taking important decisions about their
upbringing, for example their education. And, importantly, although birth
parents retain their legal parental responsibility, the special guardian
only has to consult with them about these decisions in exceptional
circumstances.
»
2. What are the Regulations and Guidance
The Adoption and
Children Act 2002
The Adoption and Children Act 2002 inserts new
sections into the Children Act 1989, and modifies some existing sections of
the Children Act. In relation to special guardianship, these are the
relevant references:
Section 115 of the Adoption and Children Act 2002 (insertions)
Inserted Section 14 A-G of the Children Act 1989
Schedule 3 of the Adoption and Children Act 2002 (modifications)
Any decision about special guardianship must be
viewed in the light of the welfare checklist in Section 1 of the Children
Act 1989. In addition there are Special Guardianship Regulations 2005 which
set out further provisions, particularly in relation to special guardianship
support services and the report to the court. There is also a summary at the
beginning of the Special Guardianship guidance (paragraphs 1-21), based on
the Act, and regulations. The Act, regulations and statutory guidance need
to be read together in order to fully understand the new system.
Regulations
England
The Special Guardianship Regulations 2005:
http://www.opsi.gov.uk/si/si2005/20051109.htm
Wales
The Special Guardianship (Wales) Regulations
2005:
http://www.opsi.gov.uk/legislation/wales/
wsi2005/20051513e.htm
Guidance
England and Wales
DfES Guidance on Special Guardianship:
http://www.dfes.gov.uk/adoption/docs/6207adoption.pdf
»
3. Why was Special Guardianship introduced
For some time researchers and practitioners have
highlighted that there are some, mainly older, children and young people in
care who may accept that they can not live with their birth parents, but who
are still unhappy about being adopted and breaking all legal ties with their
family. Long-term fostering has provided an alternative placement option for
this group of children and young people, but it hasn’t always offered them
the security and sense of belonging that they need. At the same time, some
foster carers who have been caring for children over a period of time, have
felt anxious and frustrated about the lack of clarity about their role in
day-to-day decision making, and have expressed their need for a legally
secure relationship with these children. Special Guardianship Orders have
been introduced to offer an alternative permanency option for this group of
children and their carers, and one which might be more appropriate in other
particular circumstances.
»
4.When might Special Guardianship
be the preferred option
Any decision to apply for a Special Guardianship
Order should clearly always be based on meeting the needs of the child or
young person, but there are particular situations where it might be more
appropriate:
Older children and young people in long-term care,
as described above, who may wish to retain some legal ties with their
birth family and who do not want to be adopted
Unaccompanied asylum-seeking children who need a
secure, permanent home here, but have strong attachments to their family
abroad
Prospective carers from minority ethnic groups who
may wish to offer a child a permanent family, but have religious or
cultural difficulties with adoption as it is set out in law
Kinship care, where members of the extended family
may not want to adopt the child, but do need more security and clarity
about day-to-day decision making
»
5. Who can
apply to be a Special Guardian
A court may make a Special Guardianship Order in
respect of a child on the application of:
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 a residence order with respect to
the child, or who has the consent of all those in whose favour a residence
order is in force
Anyone with whom the child has lived for three out
of the last five years
Where the child is in the care of a local
authority, any person who has the consent of the local authority
Anyone who has the consent of all those with
parental responsibility for the child
Any person, including the child, who has the leave
of the court to apply
6. What is the
process
There is nothing in the Special Guardianship
regulations setting out a planning process which local authorities must
follow, as there is for adoption. Each local authority will need to
establish their own policies and procedures to make a decision about special
guardianship for children in their care, and it is not necessary to have a
panel to make this recommendation.
All applicants must give their local authority 3
months notice in writing that they are going to apply for an order, and
local authorities are required to produce to the court a report on all
children, not just those who are looked after, when an application is made.
This report must include information about the child, the child’s wishes,
the child’s birth family, contact arrangements, the prospective special
guardian and recommendations about whether or not an order should be made
(See the schedule to the relevant regulations for further details). The
local authority is expected to start work on this report, or arrange for
someone else to do it, as soon as possible after receiving the notice. The
court cannot make an order without having received a report. Local
authorities are expected to ensure that the social worker who prepares the
report is suitably qualified and experienced, but there are no restrictions
on who can write the report as there are for adoption.
Before making the Special Guardianship Order a court must consider
whether to vary or discharge any other existing order made under Section 8
of the Children Act 1989. The court can also decide to make a Section 8
Contact Order at the same time as the Special Guardianship Order. In all
circumstances the court must consider the whole range of options available
before making a Special Guardianship Order.
»
