Special Guardian

Special Guardians – Impact of ‘local guidance’ for courts?

This is a post by Sarah Phillimore

EDIT – 20th June 2018 the Court of Appeal have now considered this issue of such ‘gloss’ upon the statute n the case of P-S (Children) [2018] EWCA Civ 1407 (18 June 2018), The CoA held that the Judge was wrong to make a care order instead of an SGO, relying on the local guidance which said that SGOs should not be made if the child had not lived with the prospective SGs for some time. If there were concerns about the appropriateness of the SGO, the correct response was to adjourn the final decision not make a ‘short term’ care order.

Recently I attended the Family Court at Worcester where I was representing a family member who wished to apply to be a Special Guardian to a new born baby. I was alarmed to be told by the local authority representative that there was a local direction that prevented a Special Guardianship Order being made unless the child had lived with the prospective Special Guardians for ‘some time’.

I asked to see a copy of this guidance/directive as, of course, this is not a requirement in the statute. When the court is being asked to make a SGO it looks at the welfare checklist in the Children Act and makes the child’s welfare its paramount consideration. There is no specific direction to consider how long the child had already lived with the prospective Special Guardians – and of course, if the child in question is a new born baby, its highly unlikely that child has lived much with anyone at all.

I was relieved to see that the guidance/directive was not in fact a prohibition on the making of a SGO where the child had not lived with the applicants – but it did seem to be adding quite a significant extra layer to the requirements of the statute. See this post for more detailed discussion about how an SGO can be made under section 14 of the Children Act 1989.

I assume this guidance/direction must be a response to the general concern that SGOs were being made too hastily in cases where local authorities did not feel they had sufficient evidence to jump the hurdle of ‘nothing else will do’ that would justify the making of a care order with a plan for adoption. I discuss this further in this post which examines the huge rise in SGOs made alongside Supervision Orders.

But issuing local guidance in response to Special Guardian Orders that should not have been made, is like changing the colours of your bucket when your roof is leaking. The roof needs to be fixed. If there really is such a serious and widespread inability of lawyers and social workers to prepare and analyse cases so that judges can make orders in the best interests of children, how reasonably can anyone expect piecemeal local guidance to fill the gap?

I also raise serious questions about the legitimacy of any such guidance which purports to add such a significant gloss to a statute. Lawyers and Judges cannot ‘make’ law’ – we must identify existing law and apply it. If the Children Act and its requirements for the making of a SGO are insufficient, those gaps must be filled by Parliament.

The relevant part of the local guidance/directive reads as follows. I have put my comments in bold:
1. Special Guardianship Orders … In public law proceedings where the court is being invited to consider a placement with prospective special guardians should the court, assuming the threshold criteria are satisfied, (i) make a care order and leave it to the local authority and the prospective guardians to decide when the time is right to place the child with them and/or to support the prospective special guardians making an application for an SGO or (ii) keep the proceedings open under interim orders pending a time when the court considers it appropriate to make a SGO in favour of the prospective special guardians? The answer is that it all depends on the particular circumstances of each case. Exactly. This is why additional ‘guidance’ can often do more harm than good. Each case is dependent on its own facts and a consideration of what is in the best interests of the particular child involved. I suggest the following points may be of assistance to determine what is the right course in any particular case:
a. a SGO must not be made without the court having a full special guardian assessment report. It is an essential component of the court’s decision making process; this should go without saying. It is depressing therefore that it has to be said.
b. a SGO should not be made, absent compelling and cogent reasons, until the child has lived for an appreciable period with the prospective special guardians; this is alarming. This is not a provision in the Children Act. It seems to operate to exclude very young children from consideration. This is neither rational nor reasonable and is promoting a move away from considering the welfare of the particular individual child before the court.
c. the special guardianship assessment report process must not be curtailed in an attempt to conclude proceedings within 26 weeks; again – should go without saying. Depressing it needs to be said.
d. in some cases a child arrangements order may be the order which meets the welfare best interests of the child; Yes. Why even bother saying this? But if the matter before the court is in care proceedings then equally we need to recognise that child arrangement orders are not going to be a likely mechanism for keeping a child safe. Care orders can only be made if child has suffered or is at risk of suffering significant harm.
e. where the care plan (providing for placement with the prospective special guardians and, in time, support for the prospective special guardians to apply for a SGO) is agreed and/or is approved by the court, the proceedings should be concluded with the making of public law or private law orders; Yes.
f. where a local authority cannot approve a placement of a child with prospective special guardians under the auspices of an interim care order (i.e. the requirements of placement or fostering regulations cannot be met) the court may sanction a placement under an interim CAO or, if the circumstances justify the same, under wardship;
g. only in exceptional cases should care proceedings be prolonged solely for the purpose of awaiting the outcome of a trial placement of a child with prospective special guardians and/or the completion of a SGO assessment report. Agreed – but this requires recognition that assessments must therefore be on going as soon as possible if they are to be finished within the timescales of 26 weeks. Judges are continually critical of late arrival of family members but we need them to start actually exercising their judicial authority over this and managing cases; the message needs to go out loud and very clear that there is no excuse for late arrival of family members as prospective carers. Everyone’s minds needs to be focused on what other family members could be available. And courts need to start having the courage to refuse to consider assessments of people who arrive late, unless there is exceptionally good reason and they really didn’t know what was going on.

Special Guardian Orders and Supervision Orders – is it ever right these go together?

On 13th October 2016 a group of local practitioners – barristers, solicitors, guardians and local authority managers – met to discuss the growing concerns over the practice of making special guardianship orders alongside supervision orders. Those present agreed that this should not be as commonplace as the statistics suggest (about 30% of SGO have a SO attached) because this could indicate concern about the vulnerability of the kinship placement. However, some commented that that a SO had been used positively in their cases to provide a framework to promote local authority help around contact issues.

We agreed that we should contact those researching the issue and highlight some of our discussions. Crucial to proper understanding of what is going on is identifying who is pushing for these orders – is it the local authority applying or the court imposing? And what are the statistics on breakdown of such kinship placements?

We met at the Bristol CJC to discuss this issue. By happy coincidence, it was the subject of a letter to the Times by Sir Martin Narey that very day, so his observations provided another framework for discussion.

Me in The Times today about the continuing collapse in adoption numbers pic.twitter.com/PijO3bQGbW

— Martin Narey (@martinnarey) October 13, 2016

Sarah Phillimore lead the discussion by first setting out the historical development of our debate about permanence for children.

A history lesson – the push for adoption and the push back from the courts

[If you are interested in reading more about this debate and want the links to documents cited, see the ‘Forced Adoption’ post.]

In 2000, the government introduced a national target to increase the number of children adopted from care by at least 40% between 1999-2000 and 2004-5. Tony Blair had been horrified by the numbers of children who remained in care for long periods of time without a permanent home. These were not targets to take children from their homes in order to get them adopted – as some assert – but a well intentioned attempt to help children who were already in the care system and hadn’t been found a permanent home.

Claire Fenton-Glynn describes the situation in her study on the UK system, presented to the European Parliament in June 2015:

The Prime Minister’s Review of Adoption in 2000 put forward the belief that the system was not delivering the best for children, as decisions about how to provide a secure, stable and permanent family were not addressed early enough. As such, it advocated an increase in the use of adoption to provide children with permanency at an earlier stage. The Review gave the opinion that there was too great a focus on rehabilitation with the birth family, at the expense of the child’s welfare. It emphasised that the first choice should always be a return to the birth family, but where this was clearly not an option, adoption should be seen as a key means of providing permanence. Foster care, on the other hand, was viewed as a transitional measure, which should be used only as a temporary option.
Following on from this, the government produced a White Paper entitled Adoption: A New Approach, which outlined the government’s plan to promote the wider use of adoption for looked after children, establishing the target of increasing adoption by 40-50 per cent by 2004-2005.39 The White Paper also announced that the government would require local authorities to make a plan for permanence – returning home, placement for adoption, or special guardianship40 – for a child within 6 months of being continuously looked after.
It was in this context that the Adoption and Children Act 2002 was introduced, with the explicit aim of promoting the greater use of adoption. The Act changed the process of adoption itself, by making the welfare of the child the paramount consideration for courts and adoption agencies in all decisions relating to adoption, including in deciding whether to dispense with the birth parents’ consent to adoption.

Various governments since 2000 have been very clear that they believe adoption is the best option of permanency for children who can’t live with their birth families. See for example letter in today’s Times from Sir Martin Narey (above).

This official ‘push’ for adoption met an equal and opposite reaction from the courts in and In the matter of B (A Child) [2013] UKSC 33 and Re B-S (Children) [2013] EWCA Civ 1146. Although the Judges insisted they hadn’t changed the law, there is no doubt these authorities had a massive impact on PRACTICE and applications for placement orders fell dramatically.

So – what to do with children if you are worried they aren’t safe with their birth families, but you also worry that you can’t show sufficiently well argued grounds to support placement order with plan of adoption? One recourse was clearly Special Guardianship Orders.

Implications of the ‘adoption agenda’ for SGOs

Its worth reminding ourselves why SGO came into being. It is an option of permanence – not a ‘holding position’. The Adoption and Children Act 2002 amended section 14 of the Children Act 1989 to create special guardianship orders (SGO). These are a ‘half way house’ between a Child Arrangements Order and adoption, which severs all legal ties between a child and his birth family.

The aim behind a SGO is that it will give a child permanence and stability but also allow him to retain links to his birth family. For example, if a child is cared for by a close relative such as a grandmother, then adoption doesn’t make much sense as his grandmother would legally become his ‘mother’. However, special guardianship is not intended to be only used for relatives; foster carers should also be considered as potential special guardians. See Re I (Adoption: Appeal: Special Guardianship) [2012] Fam Law 1461.

The court in S (a child) [2007] EWCA Civ 54 discussed the government’s motivation behind creating SGOs at paragraph 11 of its judgment. The concept of special guardianship was introduced and discussed in paragraphs 5.8 to 5.11 of the 2000 White Paper in the following terms:

5.8 Adoption is not always appropriate for children who cannot return to their birth parents. Some older children do not wish to be legally separated from their birth families. Adoption may not be best for some children being cared for on a permanent basis by members of their wider birth family. Some minority ethnic communities have religious and cultural difficulties with adoption as it is set out in law. Unaccompanied asylum-seeking children may also need secure, permanent homes, but have strong attachments to their families abroad. All these children deserve the same chance as any other to enjoy the benefits of a legally secure, stable permanent placement that promotes a supportive, lifelong relationship with their carers, where the court decides that is in their best interests.
5.9 In order to meet the needs of these children where adoption is not appropriate, and to modernise the law so as to reflect the religious and cultural diversity of our country today, the Government believes there is a case to develop a new legislative option to provide permanence short of the legal separation involved in adoption. This view was strongly supported by respondents to the consultation on the PFU report.
5.10 The Government will legislate to create this new option, which could be called ‘special guardianship’. It will only be used to provide permanence for those children for whom adoption is not appropriate, and where the court decides it is in the best interests of the child or young person. It will: –
• give the carer clear responsibility for all aspects of caring for the child or young person, and for making the decisions to do with their upbringing. The child or young person will no longer be looked after by the council;
• provide a firm foundation on which to build a lifelong permanent relationship between the carer and the child or young person;
• preserve the legal link between the child or young person and their birth family;
• be accompanied by proper access to a full range of support services including, where appropriate, financial support.

Use of SGOs on the rise – and concerns about this.

There is no doubt that the use of SGOs is rising. So too the number of SGOs made together with a SO. What isn’t clear from the statistics is whether this is a combination actively pursued by a LA or imposed by a court.

Community Care made a FOI to CAFCASS and reported the statistics in an article on 3rd December 2015. Of the 4,121 special guardianship orders (SGOs) made in 2014, 1,193 had a supervision order attached. The number of SGOs made with a supervision order attached almost tripled from 2012 to 2014, while the numbers of those without a supervision order rose by around 50%.Figures up to 31 September 2015 indicate the practice may increase again this year. By September 2015 922 of the 3,148 SGOs made had a supervision order attached, which is nearly 30%.

This is confirmed by the research funded by the Nuffield Foundation ‘A national study of the usage of supervision orders and special guardianship over time (2007-2016)’:
• There has been a steady rise in the number and proportion of special guardianship orders resulting from public law proceedings since 2007/08.
• There has been a marked change in the ratio of usage of special guardianship orders since 2012/13 when compared to placement order trends. The proportion of placement orders has declined as the share of special guardianship orders has risen. In 2014/15 for the first time ever, the proportion of special guardianship and placement orders (20.1% v 20.9%) and the numbers (3,591 v 3,749) are converging.
• A new and growing trend is the use of a supervision order made to the local authority to accompany a special guardianship order. In 2014/15 28.7% of special guardianship orders were accompanied by a supervision order, up from 11.2% in 2010/11. But usage of supervision orders as a standalone option compared to other legal orders has remained almost level (e.g. 13.1% in 2010/11 and 13.8% in 2014/15).

The first briefing paper comments:

The steady increase in special guardianship orders accompanied by a supervision order is another important new trend. It means that in approximately a third of all cases the local authority is required to ‘advise, assist and befriend the supervised child’ when a special guardianship order is made. There are practical and resource implications arising from this new trend. But above all it raises the question why a supervision order is necessary and what it can achieve. There is no national evidence on the contribution of supervision orders to child wellbeing in general and supporting special guardianship orders in particular. This trend will need careful monitoring.

Concerns about this trend and poor quality assessments have been exacerbated by extensive media coverage of the death of young children at the hands of their Special Guardians.

7 year old Shanay Walker was found dead at a house in Nottingham in July 2014 while in the care of her aunt Kay-Ann Morris, 24. She had suffered more than 50 injuries. Jailing Morris for eight years and Smikle for four years, the judge Mr Justice MacDuff said the pair were guilty of a “most wicked betrayal of trust”
18 month old Keegan Downer was killed on 5th September 2015 by Kandyce Downer, 34, less than a year after SGO made.

Andrew Webb (ADCS) and Anthony Douglas (Cafcass) prepared a note: ‘The assessment of Special Guardians as the preferred permanence option for children in care proceedings applications’ . This was circulated via email in October 2015 to all local practitioners for ‘information only’ – it was not signed or endorsed by the President of the Family Division.

Their identified concerns were:
a. Insufficient consideration of placement’s long term viability.
b. Many placements have been arranged at a late stage in care proceedings without adequate time to carry out a suitability report to safe minimum standards which avoidably increases the risk of placement breakdown or the risk of immediate and significant harm.
c. Basic safeguards routinely applied to other forms of permanence should be followed with every Special Guardianship assessment and court process.
d. Where an SGO is being considered at a late stage in proceedings, care must be taken to ensure that minimum standards are complied with and that the suitability report covers the issues sufficiently. This is just as crucial if professional concerns relate to the long term capacity of the proposed special guardians to parent well, as it is if the child has neither lived with the proposed special guardian/s nor has a relationship with or attachment to the proposed special guardian.
e. If such a late assessment means that the 26 week limit cannot be complied with, this should be clearly presented to the court as a legitimate reason for assigning the case to the non-standard track.
f. All assessments/suitability reports, should comply with the Schedule set out in Regulation 21 of the Special Guardianship Regulations 2005 (2005 No.1109). The threshold for a Special Guardianship Order in social work terms is that there is an evidence base that neither a co-parenting agreement, nor a s8 Order under the Child Arrangements Programme, will guarantee the child sufficient security and stability throughout their childhood. Conversely, the social work assessment and the children’s guardian’s analysis must demonstrate that the special guardian can meet the needs of the child in question including, where appropriate, recovery from the trauma associated with severe abuse or neglect if that has been the child’s prior lived experience.
g. It is important not to regard a Special Guardianship Order as a default option because of the higher hurdle of an adoption recommendation – ‘the nothing else will do’ test, or ‘last resort’ concept. Care must be taken to provide a balanced assessment of the special guardian, rather than over-emphasising untested positives.

The Department of Education conducted a review of the use of SGOs and published its findings in December 2015:
a. A significant minority of cases where assessments were rushed or of poor quality;
b. Potentially risk placements being made – for example, where the SGO is awarded with a supervision order (SO) because there remains some doubt about the special guardian’s ability to care for the child long-term
c. Inadequate support for special guardians, both before placements are finalised, and when needs emerge during the placement.

It is vitally important for the local authority analysis to be robust, supported by strong and intelligent evaluation. SGOs are permanence orders, awarded on the expectation that the child will remain in that placement until he or she is an adult. For this reason, a sound prediction of the child’s long-term welfare in that placement should sit at the heart of the assessment, and form the basis for the final care plan.

Discussions with the audience

SGOS made alongside SO are rising. Is this ever the right outcome for children ? Why would these orders be made together? Some possible answers are:
a. Worries about SG placement and risk of harm. But if you are concerned about a placement to the extent that a Supervision Order is required, can this really be the right permanent placement for a child? Particularly now with judgment of Court of Appeal in Re W (A Child) [2016] which demolishes any presumption of the primacy of a family placement. A child’s opportunity to grow up with a distance aunt or uncle or grandparents should not outweigh that child’s right to be kept safe – even alive.
b. Worries that not sufficient analysis for ‘nothing else will do’ – but SGO can’t be fudged compromise between adoption and long term fostering.
c. Court concerned that lack of support on offer for the SG – but will a supervision order have any impact on this?

There was general agreement in the audience that they were very uneasy about a SO being used to ‘prop up’ a risky placement but some said a SO had a positive impact when used to promote contact arrangements. However, it is not clear that this is a legitimate use of a SO; there is no enforceable obligation upon a local authority to supervise contact post placement unless the court was prepared to entertain an application under the Human Rights Act (which carries its own complications). Some in the audience agreed that what made post placement contact arrangements work was the willingness of the local authority to engage, not the impact of orders which could not be practically enforced. There was widespread unhappiness about the impact of Family Assistance Orders – most perceiving them to be ‘useless’ – but two practitioners did report a positive impact of an FAO after the SGO was made.

All agreed it was vital to try and break the statistics down further to see if it was local authorities pushing for SGOs with SO, or whether this was being led by the court. Further, it would be essential for future discussion to understand more about how and when SG placements break down. It was noted that some LA review and keep records of the financial assistance offer to SGs so this would be one way of trying to ‘track’ what happened to placements when the court proceedings finished.

However, the point was made that local authorities could not be expected to be a ‘go between’ the Special Guardians and other family members throughout the child’s minority. The whole point of such a placement was that that the SG was deemed able to meet the child’s needs. If continuing assistance was required from a local authority to monitor or manage contact, that raised some doubts as to the suitability of the SGO in the first place.

All agreed that the rise of social media had a significant impact on issues around contact and children seeking out their birth families post placement. This was another reason for getting better statistics for breakdown rates for SG placements.

There was general agreement that the ‘disconnect’ between official policy – more adoptions, more quickly – and what was happening on the ground – pressure to end proceedings in 26 weeks – was having an impact on the nature and quality of assessments. The majority of those present had experienced SG orders being made for people who had failed or would have failed a fostering assessment. There was general agreement that courts needed to be more robust in insisting that possible family placements were identified as soon as possible and that ‘late applications’ would not be entertained. It simply isn’t possible to produce a SG assessment of suitable quality in the middle of a 26 week timetable.

It was agreed that Sarah Phillimore would contact the Nuffield and raise some of these issues with the researchers.

EDIT by SP- I am reminded that the Special Guardian Regulations were updated in 2016. I cannot see that these amendments will have much practical impact on the problems identified, given that the primary problem is the lack of time to carry out proper assessments. But it is a useful reminder that careful consideration must be given to what harm has been suffered by a child before the SGO was made. This will inevitably have an impact on what kind of placement is best for that child.

The relevant part of the amendments reads:

Amendments to the Special Guardianship Regulations 2005

4. In paragraph 1 of the Schedule (matters in respect of the child) —

(a)after sub-paragraph (g) insert:
“(ga)any harm which the child has suffered;
(gb)any risk of future harm to the child posed by the child’s parents, relatives or any other person the local authority consider relevant;”
(b)in paragraph (j) after “related” insert “current needs or likely future”.
5. In paragraph 4 of the Schedule (matters in respect of the prospective special guardian or, where two or more persons are jointly prospective special guardians, each of them) —

(a)for sub-paragraph (j), substitute:
“(j)an assessment of the nature of the prospective special guardian’s current and past relationship with the child;”
(b)for sub-paragraph (n), substitute:
“(n)an assessment of the prospective special guardian’s parenting capacity, including:
(i)their understanding of, and ability to meet the child’s current and likely future needs, particularly, any needs the child may have arising from harm that the child has suffered;
(ii)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 the local authority consider relevant, particularly in relation to contact between any such person and the child;
(iii)their ability and suitability to bring up the child until the child reaches the age of eighteen

Applying to discharge or vary a Special Guardianship Order

The law is as set out at section 14 D of the Children Act 1989, which is set out at the end of this post. We can see from this that a parent can apply to vary or discharge an SGO but needs the court’s permission first.

‘Vary’ means you want to change the content of the order; ‘discharge’ means you want the order to come to an end. There is probably little point in applying to discharge or vary an order until at least six months have passed since it was first made – if you think that the order should not have been made in the first place, you should consider applying to appeal – but you will have to do that within 3 weeks.

Special Guardianship Orders are meant to be a way of providing a child with a permanent home throughout his childhood so you will need good reasons to say that the order should no longer apply, once it has been made. There is no automatic legal aid for parents in such proceedings.

For more general information about SGOs, see this post.

The courts have decided that this is a two stage test.

a. First the parent must show a change of circumstances.
b. Then the court will consider the child’s welfare and the parent’s prospects of success in challenging the SGO.

Step 1: What counts as a ‘significant change of circumstances’ ?

The courts are unlikely to place much weight on use of the word ‘significant’ when applied to the word ‘changes’. In G (A Child) [2010] EWCA Civ 300 Wilson LJ decided to proceed on the basis that there is no relevant difference between applying for permission to discharge a placement order [under section 24(3) of the Adoption and Children Act 2002] and applying for permission to discharge an SGO, even though section 14D refers to ‘significant’ changes and the Adoption and Children Act does not.

Various courts have agreed that the bar cannot be set too high so that no parents could ever get over it; parents should not be discouraged from trying to improve their circumstances. But the change in circumstances has got to be a relevant one.

In the case of Re B-S (Children) [2013] EWCA Civ 1146 the court described the test for ‘change of circumstances’ in this way, in the context of the Adoption and Children Act 2002:
a. … the court has to be satisfied on the facts of the case that there has been a change in circumstances ‘of a nature and degree sufficient, on the facts of the case, to open the door to the exercise of judicial evaluation’
b. the test should not be set too high, because parents should not be discouraged from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test that is unachievable;
c. whether or not there has been a relevant change in circumstance must be a matter of fact to be decided by the good sense and sound judgment of the tribunal hearing the application;
d. if there is no change in circumstances, that is the end of the matter, and the application fails.

In another case also called G (A Child) [2015] EWCA Civ 119 the Court of Appeal agreed that a change in the child’s circumstances could also be relevant.

Therefore, the parent will have to demonstrate some relevant changes which on the facts of the particular case in front of the judge, means it is appropriate for the Judge to consider moving on to Step 2 of the process. It is likely that if the concerns about your parenting in the care proceedings were very serious, you will need to show correspondingly serious changes.

For example, in Re G [2010] the mother’s child was living with the maternal grandmother under an SGO after the mother had been in a number of violent relationships. However, the grandmother agreed she would not oppose permission being given to the mother to apply to discharge the SGO, after hearing about the efforts the mother had made to attend counselling/therapy to help her make better relationship choices in the future. The mother was also caring successfully for her second child without any intervention from Children’s Services.

Step 2: What do the courts mean by considering issues about ‘welfare’ and ‘prospects of success’ ?

Having determined that the approach to ‘change’ should be the same for applications to discharge an SGO and to discharge a placement order, it made sense for Wilson JL to also decide in G (A Child) [2010] that courts should take the same approach after deciding that the circumstances had changed.

Wilson LJ confirmed that this means the approach in M v Warwickshire County Council [2007] should be followed, where he said at paragraph 29 of his judgment in that case:

In relation to an application for leave under s.24(3) of the Act I therefore hold that, on establishment of a change in circumstances, a discretion arises in which the welfare of the child and the prospect of success should both be weighed. My view is that the requisite analysis of the prospect of success will almost always include the requisite analysis of the welfare of the child. For, were there to be a real prospect that an applicant would persuade the court that a child’s welfare would best be served by revocation of the placement order, it would surely almost always serve the child’s welfare for the applicant to be given leave to seek to do so. Conversely, were there not to be any such real prospect, it is hard to conceive that it would serve the welfare of the child for the application for leave to be granted.

This means a change in circumstances is a necessary but not sufficient condition to get permission to make the application to discharge a SGO – it opens the door for the Judge to consider it and he or she will then examine the often overlapping issues of the child’s welfare/prospects of success of the application.

The child’s welfare is not however the paramount consideration for the court in this exercise. Also, the issue of “a real prospect of success” relates to discharging/varying the order NOT necessarily the return of the child to the parent’s care. See Re G [2015].

At this stage, the courts will probably want to consider how long the changes you have made have been in place, and how likely they are to be sustained in the future.

Section 14 D Children Act 1989

Special guardianship orders: variation and discharge

(1)The court may vary or discharge a special guardianship order on the application of—
(a)the special guardian (or any of them, if there are more than one);
(b) any parent or guardian of the child concerned;
(c )any individual in whose favour a [Child arrangements order] is in force with respect to the child;
(d) any individual not falling within any of paragraphs (a) to (c) who has, or immediately before the making of the special guardianship order had, parental responsibility for the child;
(e) the child himself; or
(f) a local authority designated in a care order with respect to the child.
(2) In any family proceedings in which a question arises with respect to the welfare of a child with respect to whom a special guardianship order is in force, the court may also vary or discharge the special guardianship order if it considers that the order should be varied or discharged, even though no application has been made under subsection (1).
(3) The following must obtain the leave of the court before making an application under subsection (1)—
(a) the child;
(b) any parent or guardian of his;
(c) any step-parent of his who has acquired, and has not lost, parental responsibility for him by virtue of section 4A;
(d) any individual falling within subsection (1)(d) who immediately before the making of the special guardianship order had, but no longer has, parental responsibility for him.
(4) Where the person applying for leave to make an application under subsection (1) is the child, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application under subsection (1).
(5) The court may not grant leave to a person falling within subsection (3)(b)(c) or (d) unless it is satisfied that there has been a significant change in circumstances since the making of the special guardianship order.

Special Guardianship Orders

This order makes someone a child’s ‘special guardian’.

The law concerning special guardians can be found at:

section 14A-F of the Children Act 1989,
the Special Guardianship Regulations 2005 as amended in 2016
and the Special Guardianship Guidance from 2005. The guidance does not have the same legal force as a statute, but the courts will expect LAs to comply with it, unless there are exceptional circumstances.
Guidance published in June 2020 – see Best Practice Guidance at Appendix E.

What is a special guardian?

The Adoption and Children Act 2002 amended section 14 of the Children Act 1989 to create special guardianship orders (SGO). These are a ‘half way house’ between a Child Arrangements Order that provides a child should live with someone (what used to be called a ‘residence order’) and adoption, which severs all legal ties between a child and his birth family.

The aim behind a SGO is that it will give a child permanence and stability but also allow him to retain links to his birth family, for example in situations where it might not be appropriate to get an adoption order. For example, if a child is cared for by a close relative such as a grandmother, then adoption doesn’t make much sense as his grandmother would legally become his ‘mother’.

However, special guardianship is not intended to be only used for relatives; foster carers should also be considered as potential special guardians. See Re I (Adoption: Appeal: Special Guardianship [2012] Fam Law 1461.

The court in S (a child) [2007] EWCA Civ 54 discussed the government’s motivation behind creating SGOs at paragraph 11 of its judgment:

In December 2000, the government published a White Paper entitled Adoption: a new approach (Cm 5017) (the White Paper). This followed the fundamental review of adoption policy and practice initiated by the Prime Minister earlier in the same year. The executive summary expressed the government’s belief that “more can and should be done to promote the wider use of adoption”, a sentiment repeated in paragraph 1.13 of the White Paper itself. At the same time, the White Paper recognised that adoption was not always appropriate for children who cannot return to their birth parents. The concept of special guardianship was introduced and discussed in paragraphs 5.8 to 5.11 of the White Paper in the following terms:

–
‘Special guardianship’
5.8 Adoption is not always appropriate for children who cannot return to their birth parents. Some older children do not wish to be legally separated from their birth families. Adoption may not be best for some children being cared for on a permanent basis by members of their wider birth family. Some minority ethnic communities have religious and cultural difficulties with adoption as it is set out in law. Unaccompanied asylum-seeking children may also need secure, permanent homes, but have strong attachments to their families abroad. All these children deserve the same chance as any other to enjoy the benefits of a legally secure, stable permanent placement that promotes a supportive, lifelong relationship with their carers, where the court decides that is in their best interests.
5.9 In order to meet the needs of these children where adoption is not appropriate, and to modernise the law so as to reflect the religious and cultural diversity of our country today, the Government believes there is a case to develop a new legislative option to provide permanence short of the legal separation involved in adoption. This view was strongly supported by respondents to the consultation on the PFU report.
5.10 The Government will legislate to create this new option, which could be called ‘special guardianship’. It will only be used to provide permanence for those children for whom adoption is not appropriate, and where the court decides it is in the best interests of the child or young person. It will: –

give the carer clear responsibility for all aspects of caring for the child or young person, and for making the decisions to do with their upbringing. The child or young person will no longer be looked after by the council;
provide a firm foundation on which to build a lifelong permanent relationship between the carer and the child or young person;
preserve the legal link between the child or young person and their birth family;
be accompanied by proper access to a full range of support services including, where appropriate, financial support.

There has been considerable evolution in the approach of the courts to identifying and assessing Special Guardians – particular problems have arisen when dealing with very young babies, who have no pre-existing relationship with the proposed Special Guardians, or when cases were ‘rushed’ and some SGOS were made when tragically it was not safe to do so.

Who can be a special guardian?

When there is a question mark over parents’ ability to care for their children in the long term, best practice is that the local authority considers if there are any ‘connected people’ who could look after the child instead, i.e. family or friends. The local authority should undertake an initial family and friends care assessment, or ‘viability assessment’

This can be complicated, particularly if the parents have a wide extended family, who live in other local authority areas or even abroad. There shouldn’t be a ‘cap’ put on the number of people who put themselves forward, but equally, everyone has to be realistic. Someone who is already caring for a large number of children or has challenges of their own to meet, may not be a realistic option.

Anyone who wants to to apply to be a Special Guardian, has to be 18 or over and you can’t be the child’s parent. Some people can make an application for an SGO without the court’s permission, others will need leave from the court to make the application.

You don’t need permission to apply if:

you are the guardian of the child;
you are named in a a child arrangements order as a person with whom the child lives;
a local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application;
a relative with whom the child has lived for a period of at least one year immediately preceding the application.
if the child is in care and the local authority agrees you should make the application

How do I become a special guardian?

Your position may be very different depending on whether or not you have the backing of the local authority. You won’t get automatic legal aid to be represented in care proceedings but usually local authorities are asked by the court to pay for you to have a few hours of legal advice to explain your options. If the local authority doesn’t support you, you will have to apply to the court for permission to make an application,

You have to give three months notice of your intention to apply to the local authority which is looking after the child or the local authority where you live if the child isn’t in care. The local authority then have to prepare a special guardianship report which will examine your suitability to be a special guardian. The court can’t make an SGO without this report.

When deciding whether or not to make an SGO the court will consider that the child’s welfare is paramount and it will look at the welfare checklist in section 1(3) of the Children Act 1989.

There is a ‘residual power’ of the court to make a SGO ‘of its own motion’ (i.e. without any application before it) under section 14A(6)(b) of the Act but the Court of Appeal in P-S (Children) [2018] EWCA Civ 1407-were clear that it ‘should not be the normal or default process’. This is because someone who doesn’t have the consent of the LA needs more scrutiny. The court said at para 53:

In the absence of the local authority’s consent, the grandparents would have been able to apply for leave to make an application under section 10(9) of the 1989 Act where the factors to be considered by the court are specified. In a case where the local authority does not consent the leave application is an important protection for the child and the child’s parents. It is not a rubber stamp. Where leave is granted, an appropriate balance is struck between the applicants, the child, the child’s parents and the local authority. It is relatively common to find that local authorities who give consent to an application being made, that is who support the application on the merits, will help fund the applicant by providing representation. That happened in this case when the matter came on appeal and after a case management indication to that effect was given by this court. It ought to have happened earlier.

This case is also important because it looked at the issue of providing legal advice to people who might be thinking about applying to be a Special Guardian. This case saw a successful appeal against final care orders in a case where the Judge had been worried that the child had never lived with the proposed Special Guardians. It sets out general guidance on the approach to be taken to consideration of Special Guardians and the making of SGOs within care proceedings. It is very important that proposed Special Guardians get access to proper legal advice about their options. The Court called for more authoritative guidance to sit alongside the regulations. This has now been provided by the June 2020 report of the Public Law Working Group – see below for discussion.

What does being a special guardian mean in practice?

Section 14C confirms that a special guardian is entitled ‘to exercise parental responsibility to the exclusion of any other person with parental repsonsibility for the child’.

But that doesn’t mean the special guardian can just do as he or she likes. Under section 14C, if any law requires the consent of more than one person with parental responsibility the special guardian can’t ignore that. Nor can the special guardian give the child a new surname or take him out of the country for more than three months if the parents don’t consent.

Becoming a child’s Special Guardian is clearly a very significant step; its going to impact you financially and possibly your relationships with other family members.

The Best Practice Guidance (see below) says it is important for Special Guardians to understand the following:

The order will remain in force until the child reaches 18;
they will have parental responsibility for the child – this means all aspects of the child’s care including decision-making about the child’s day-to-day and long-term welfare, health and education and the provision of the resources that are needed to enable this to happen; (
their position within the family will change as they take on the responsibility for both the day-to-day and long-term parenting of the child; this may result in strong feelings being expressed by the birth parents and other family members towards the SG particularly during any contact they have after an order is made;
when an order is made and the child was previously looked after, that the SG will be entitled to an assessment of their own and the child’s support needs. This right to an assessment will continue until the child reaches 18;
following an assessment of support needs, it is at the discretion of the local authority as to whether any services will be provided, balanced against any eligibility requirements as set in law: this includes housing and financial services;
if the child was not previously looked after before the order was made, the eligibility for an assessment of support needs is at the discretion of the local authority.

Should a supervision order be made at the same time?

The Best Practice Guidance from 2020 (see below) does not think this is a good idea.

The purpose of an SGO is to provide a firm foundation on which to build a lifelong permanent relationship between the child and the carer. A supervision order should not need to be used as a vehicle by which support and services are provided by the local authority. All support and services to be provided to the SG and to the child by the local authority or other organisations should be set out in the SGSP which should be attached as an appendix to the order. The cases where it would be appropriate or necessary to make a supervision order alongside an SGO will be very small in number. The issues that are intended to be addressed in the making of a supervision order are most likely to be achieved through the process as set out above.

How can I vary or discharge a special guardianship order?

This is dealt with at section 14D of the Children Act. Parents will have to get the court’s permission before making this application and the court won’t give this permission unless there has been a ‘significant change’ in circumstances since the order was made.

However, not too much weight should be put on the use of the word ‘significant’ . In G (A Child) [2010] EWCA Civ 300 Wilson LJ decided when considering an application for leave to discharge a SGO, courts should take the same approach as they took in applications for leave to revoke placement orders and that the guidance in M v Warwickshire County Council [2007] should be followed.

Applications to revoke placement orders only require a ‘change’ in circumstances and various authorities have commented that the test should not be set too high; parents should not be discouraged from trying to improve their situation.

Applying for leave to discharge/vary is a two stage process; if you cannot show a change in circumstances, the court will not give you permission to make the application and the matter ends there. however, if you can show a relevant change, the court will then consider if you should go on to make the application, looking at the child’s welfare and whether your application has a real prospect of success. Therefore you will need to show a change of circumstances that is relevant to the particular facts of your case and is the kind of change that will open the door to the court considering to allow you permission to apply to discharge.

For example, if your child was removed because you were in a violent relationship, have you taken steps to understand the risks posed by such relationships, by attending the Freedom Programme or similar intervention.

What support do special guardians get?

Under section 14F of the Children Act, the LA must make provision for special guardian support services such as counselling, advice and information. Under the Special Guardianship Regulations, the LA must provide appropriate financial support and make an assessment of the relevant needs. It will consider the fostering allowance as a starting point and may make appropriate adjustments to that. See R (TT) v London Borough of Merton [2012] EWCA 2055.

Concern over the increase in numbers of special guardians.

TACT, the largest charity in the UK which specialises in providing fostering and adoption services, was concerned to note the sharp increase in numbers of special guardianship orders which were revealed by statistics from the Department of Education in 2014. Concerns have also been raised by Coram/BAAF.

Those statistics show that the use of special guardianship orders rose in England from 2,770 in 2013 to 3,330 in 2014. But in 2010 there were only 1,290 orders which is an increase by 2014 of 158%.

TACT CEO Andy Elvin said:

SGOs were introduced to allow young people stability and permanence. We are, however, worried that this dramatic rise indicates that they are being increasingly used inappropriately. TACT is aware of foster carers being asked to consider special guardianship shortly after a placement is made, or placements being made only on condition that an SGO is part of the care plan. SGOs should only be considered when the time is right for carers and the young person.

Amended Regulations 2016

Throughout 2015 these concerns about the increase of SGOs grew; see the note from CAFCASS in October 2015 below. The fear was that children were being placed at risk if subject to an SGO without proper consideration of the long term viability of that placement.

These concerns lead to amended Special Guardian Regulations in February 2016. Now assessments of capacity to be Special Guardian include:

their understanding of, and ability to meet the child’s current and likely future needs, particularly, any needs the child may have 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 the local authority consider relevant, particularly in relation to contact between any such person and the child;

their ability and suitability to bring up the child until the child reaches the age of eighteen;”.

Concerns from CAFCASS October 2015

THE ASSESSMENT OF SPECIAL GUARDIANS AS THE PREFERRED PERMANENCE OPTION FOR CHILDREN IN CARE PROCEEDINGS APPLICATIONS
Intended audience: Local authorities, Cafcass, judiciary, HMCTS, LSCB’s
1. Since their introduction, Special Guardianship Orders have been made in a wide variety of situations – much wider than the original legislation anticipated. The rate of increase in their use has accelerated in the past year, especially for infants. Many practitioners have expressed concern about the impact on the processes used and the future outcomes for children.
2. Whilst Special Guardianship is a positive option for many children, we are writing this note out of concern about a number of cases where we believe children have been placed at risk through a Special Guardianship Order being made without sufficient consideration of the placement’s long-term viability. Many of these placements have been arranged at a late stage in care proceedings without adequate time to carry out a suitability report to safe minimum standards. Sometimes it is clear the Special Guardianship Order process and sign off has been undertaken to ensure the case is completed within the statutory 26 week timescale. Our note is borne out of concern that this type of placement is not taking into sufficient account the requisite long-term viability for the child and, as a direct result, avoidably increases the risk of placement breakdown or the risk of immediate and significant harm.
3. Our guidance is written for learning and prevention purposes. It is clear that many Special Guardianship Orders are being made positively as a result of intensive family finding within the child’s kinship care network. When Local Authorities have been able to carry out a thorough analysis of the strengths within a family prior to or in the early stages of care proceedings, a Special Guardianship Order can be a positive permanence option. However, for reasons of risk and speed, or simply as a result of an inability to engage effectively with a family network, it is not always possible to explore this option to the right depth and at the right time. It is our view that Special Guardianship remains an important permanence option that can be a creative way of resolving a wide range of needs but the basic safeguards routinely applied to other forms of permanence should be followed with every Special Guardianship assessment and court process.
4. Where an SGO is being considered at a late stage in proceedings, care must be taken to ensure that minimum standards are complied with and that the suitability report covers the issues sufficiently. This is just as crucial if professional concerns relate to the long term capacity of the proposed special guardians to parent well, as it is if the child has neither lived with the proposed special guardian/s nor has a relationship with or attachment to the proposed special guardian.
5. If such a late assessment means that the 26 week limit cannot be complied with, this should be clearly presented to the court as a legitimate reason for assigning the case to the non-standard track.
6. All assessments/suitability reports, whether started and finished pre-proceedings or whether started and finished during proceedings, should comply with the Schedule set out in Regulation 21 of the Special Guardianship Regulations 2005 (2005 No.1109). The threshold for a Special Guardianship Order in social work terms is that there is an evidence base that neither a co-parenting agreement, nor a s8 Order under the Child Arrangements Programme, will guarantee the child sufficient security and stability throughout their childhood. Conversely, the social work assessment and the children’s guardian’s analysis must demonstrate that the special guardian can meet the needs of the child in question including, where appropriate, recovery from the trauma associated with severe abuse or neglect if that has been the child’s prior lived experience.
7. It is important not to regard a Special Guardianship Order as a default option because of the higher hurdle of an adoption recommendation – ‘the nothing else will do’ test, or ‘last resort’ concept. Care must be taken to provide a balanced assessment of the special guardian, rather than over-emphasising untested positives.
8. In short, Special Guardianship Orders should neither be recommended nor endorsed nor determined expediently where the test and bar for a carer to pass is lower than that for a permanent placement outside the family, whatever the proposed legal framework for that placement. A Special Guardianship Order is a valid and compelling permanence option for many children but fundamentally the principles underpinning a Special Guardianship assessment and care plan should be no less than the test and standards for other forms of permanence outside the child’s immediate family. If practitioners are unable to complete assessment to the standard demanded by both the regulations and the complexity of the case within the timescale proposed by the courts, this point should be clearly made. Social workers, children’s guardians and lawyers must assert themselves before the court if they believe that extra time is needed to complete an assessment so the child in question can be properly safeguarded.
9. No child should be placed in the care of a Special Guardian without DBS and other necessary checks being carried out.
10. Our note applies to all practitioners in the case. We are not singling any profession or agency out for criticism over and above any other but this has become a real problem and a real risk for the children concerned.
Andrew Webb (ADCS) Anthony Douglas (Cafcass)

Reform Proposals

A review of the law around SGOs was commissioned by the Nuffield Family Justice Observatory in response to the Court of Appeal’s call for authoritative, evidence-based guidance for the use of SGOs. It was led by Dr John Simmonds from CoramBAAF and Professor Judith Harwin from Lancaster University. The review was published in August 2019 and called for significant changes:

Increase focus on working with family members who might become the child’s special guardian before care proceedings commence.
A statutory minimum amount of preparation and training for prospective special guardians.
Ensuring that prospective special guardians have direct experience of caring for the child before making a Special Guardianship Order, evidenced by a thorough assessment of suitability.
Ensure that support services are available locally and align with entitlements for adopters and foster carers such as parental leave, housing priority and financial support.
Address the glaring gap in research on children and young people’s views and experiences of special guardianship.
Undertake research to address the challenge of how best to ensure safe and positive contact with birth parents and the wider family.

Final report of the Public Law Working Group

This was delivered in June 2020 and made four recommendations for immediate change at page 12:

more robust and more comprehensive special guardianship assessments and special guardianship support plans, including a renewed emphasis on (1) the child-special guardian relationship, (2) special guardians caring for children on an interim basis pre-final decision and (3) the provision of support services;
better preparation and training for special guardians;
reduction in the use of supervision orders with special guardianship orders;
renewed emphasis on parental contact

There were also four recommendations for longer term change

on-going review of the statutory framework;
further analysis and enquiry into (1) review of the fostering regulations, (2) the possibility of interim special guardianship orders, (3) further duties on local authorities to identify potential carers, (4) the need for greater support for special guardians;
a review of public funding for proposed special guardians;
effective pre-proceedings work and the use of the FRG’s Initial Family and Friends Care Assessment: A good practice guide (2017)

Appendix E sets out Best Practice Guidance, which the report recommends is implemented immediately. This was endorsed by the President of the Family Division.

This incorporates interim guidance specifically to address the lawful extension of care proceedings beyond 26 weeks when special guardianship is being considered as an option.