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?

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. 

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:

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.

 

Further Reading

• See what Coram BAAF say about special guardians.
• There is a blog for special guardians which provides advice and support.
• For a discussion of the merits of adoption versus special guardianship orders, see this post by suesspiciousminds.
• In December 2015 the Department of Education proposed a major review of SGO assessments after concerns were raised about the large increase in the number of SGOs.
• Report of the Nuffield Family Justice Observatory.  March 2019. This is the first largescale study of supervision orders and is the most recent national report on special guardianship. It provides crucial new evidence regarding stability and disruption for children who return to their birth parents on a supervision order or are placed within their extended families on an SGO. Powerful messages come from focus groups with special guardians and family justice professionals. They resonate with the issues raised in the recent Re P-S court of Appeal case. The report calls for better access to justice and a more transparent court process for special guardians. It also calls for a major overhaul of the process of selecting special guardians and significantly more support for this kind of placement. It has been the Cinderella for too long and needs to have parity with other types of care.
• Special Guardians – impact of local court guidance CPR October 2016
• Special Guardian orders and Supervision orders – is it right these ever go together? CPR October 2016