Special Guardianship Orders
IMPORTANT: With effect from 22 April 2014.
The Family Procedure Rules 22 April 2014 will come into force for all family proceedings, including adoption proceedings.
Note: The Children and Families Act 2014 The Children and Families Act 2014 (CFA 2014) covers both public and private children proceedings. In public law proceedings, amongst other things, it imposes a 26-week deadline for care and supervision proceedings (as piloted since July 2013), it scraps the 28-day time limit for interim care/supervision orders and it introduces new provisions regarding post adoption contact.
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Regulations 2005 (England and Wales)
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  Family Law for the full article.
|The Special Guardianship
1.What is Special Guardianship (SG)?
2.What are the Regulations and Guidance?
3.Why was SG introduced?
4.When might SG be the preferred option?
5.Who can apply to be a Special Guardian?
6.What is the process?
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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.
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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.
The Special Guardianship Regulations 2005:
The Special Guardianship (Wales) Regulations 2005:
England and Wales
DfES Guidance on Special Guardianship:
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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.
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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.
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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:
a. Any guardian of the child
b. A local authority foster carer with whom the child has lived for one year immediately preceding the application
c. 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
d. Anyone with whom the child has lived for three out of the last five years
e. Where the child is in the care of a local authority, any person who has the consent of the local authority
f. Anyone who has the consent of all those with parental responsibility for the child
g. Any person, including the child, who has the leave of the court to apply
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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.
Article of interest: Adoption or Special Guardianship?
Family Law Weekly
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