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.
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)  UKSC 33 and Re B-S (Children)  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)  Fam Law 1461.
The court in S (a child)  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)  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