Ian WalkerSpecial Guardianship Orders

Special guardianship orders are most often made at the conclusion of care proceedings, although they can also be made in cases where social services have not been involved.

care proceedings are proceedings brought by social services because they have concerns that a child is not receiving care that is good enough – and as a consequence may have suffered or be likely to suffer significant harm – if social services did not intervene.

In these cases the court will want to ensure that where a parent has failed that they are given a fair opportunity to make or to show that they can make the necessary changes to enable a child to be returned to their parents care. Alternatively, the court may approve a child being placed with another parent or family member.

For a child to end up subject to care proceedings means that something pretty bad will have happened. A child may have suffered an injury or been sexually abused or they have been neglected over a period of time. The court will want the final plan for the child to be one which will as best as possible ensure that the child is well looked after the rest of their childhood.

 

This is where a special guardianship order comes in. These are for situations where a child is placed with a non-parent who has a connection with the child – who is going to be the long-term carer of the child. Normally this would be a grandparent or grandparents, or an uncle or aunt. Special guardians can also include older siblings and adults who are connected with the child. (For example this could include the former foster carers of one of the parents – with whom they kept in good touch through adult hood – and who knew the child).

If children cannot be placed with a parent or with a family member/sufficiently connected other either with a child arrangements order or a special guardianship order – then a child is normally placed outside of the family – either in long-term foster care, or if children are young – then through adoption.

Special guardianship orders

A special guardianship order (SGO) is an order appointing one or more individuals to be a child’s special guardian.

Special guardianship is sort of ‘a half-way house’ between residence orders and adoption orders. The concept of special guardianship relates to the exercise of parental responsibility and not to parenthood.

Relationship stay the same. A parent is still the parents, grandparents are still grandparents.

Before Special Guardianship Orders were invented, it was not uncommon for children who are placed within a family to be adopted by another family member. So, the long-term plan for the child was for the child to be placed with a grandparent – then adoption would mean that legally the grandparent became the child’s parent – and the child’s parent became both a former parent and the child’s brother or sister. This could be confusing!

A Special Guardianship Order is more a Permanent Residence Order.

This means that it is difficult (but not impossible) for a parent to apply to the court to ask for the Special Guardianship Order to be discharged and for the court to approve the child returning home. When this happens – it is normally when there is a good relationship between the parent and Special Guardian and they are agreed that the parent has been able to make changes which means it is viable for the child to return to their care for the rest of their childhood.

What is particularly difficult is free parent to seek the return of a child who is subject to a Special Guardianship Order against the wishes of the Special Guardian.

Special guardianship and parental responsibility

The Special Guardianship Order gives the Special Guardian parental responsibility for the child. This parental responsibility may be exercised to the exclusion of any other person with parental responsibility for the child (apart from another special guardian), (subject to the conditions in any other court order order in force regarding the child).

In other words the Special Guardian does not need to consult with the parents when deciding what school to send a child to or to give consent for medical treatment. (Normally those sharing parental responsibility for a child (parents) should agree things like school and medical treatment – and if there was a significant disagreement which could not be resolved otherwise, they can ask the court to decide what should happen (based upon the child’s best interests).

With Special Guardianship – the Special Guardian can go ahead and make and implement changes without consulting with the parents.

Removal from the UK and change of a child’s name

The written consent of everyone with parental responsibility or leave of the court is however required in order to change a child’s surname or to remove the child from the UK (save that a special guardian may remove the child from the UK for a period not exceeding three months)

On making an Special Guardianship Order the court can give permission for the child to be known by a new surname or grant permission either generally or specifically to remove a child from the UK for a period of more than three months.

Criteria for making a special guardianship order

The court must regard the child’s welfare as the paramount consideration when deciding whether to make an SGO.

The court must apply the welfare checklist. It must also be satisfied that making an order is better than making no order.

When balancing the available options, the court must consider the welfare checklist in full, including the proportionality of state interference with rights under Article 8 of the European Convention of Human Rights (the right to family life)

The court must also have regard to the general principle that delay in determining any question with respect to the upbringing of a child is likely to prejudice the child’s welfare. The court is required to draw up a timetable to avoid delay in determining the case.

These are the normal considerations that the Court must take into account when making a final care order or child arrangements order.

Special Guardianship Support Packages

when a court is considering whether to make a special guardianship order at the end of care proceedings – the local authority/social services will be asked to prepare a special guardianship support plan which sets out the special guardianship support package. This is about the provision of services and sometimes financial support to assist the special guardians and the child.

Before a prospective special guardian agrees to the final order being made – they will want to consider the local authority support package very carefully. Whilst financial support is rare – it is not impossible. But perhaps more important – there needs to be clarity over what should happen about any arrangements for the child to see their parents and other important people – and what support should be provided to ensure that there is arrangements are safe. It is easier to iron out wrinkles in the plan before the plan is finalised and approved – than trying to deal with problems with the plan afterwards.

We are here to help

If you need some advice as to whether you should agree to becoming a Special Guardian or social services have intervened in the arrangements for your family – or you need advice for some other reason – then please do get in touch.