Special Guardianship Orders (SGOs) provide an alternative legal status for a child that offers greater stability than long-term foster care and preserves the basic ties between a child and their birth family.
Many different categories of carers may become Special Guardians such as grandparents, siblings, extended family members, friends or foster carers.
As a Special Guardian for the child you would be entitled in law to exercise parental responsibility for the child to the exclusion of, and without reference to, others who hold parental responsibility for him/her, usually the birth parents.
As a Special Guardian you must consult with all others who have parental responsibility for consent when it comes to decisions such as whether the child should: be sterilised, immunised, receive life prolonging or life shortening medical treatment, to be voluntarily accommodated into the care of the local authority or to marry under the age of 18 years.
Once made, a Special Guardianship Order has effect until the child is 18 years old and is intended as a permanent placement for the duration of the child’s minority and thereafter.
In practical terms, as a Special Guardian you will have responsibility for the decisions involving the daily care and upbringing of the child except in the circumstances detailed above.
The Court and Local Authority should be careful to ensure that there is enough time within the process to enable you, and any other parties being considered for an SGO, to have sufficient time to consider all of the implications of what becoming a Special Guardian means; for instance, taking into account what the impact will be, practically, emotionally and financially, for your family and the child. It is good practice for prospective Special Guardians to be advised by the Local Authority to seek legal advice. Cartwright King can provide you with advice on your particular circumstances.
Who can apply to be a Special Guardian?
If you are applying to be a Special Guardian you must be over 18 and can be any of the following:
- Any guardian of the child;
- A local authority foster carer with whom the child has lived with for a year immediately preceding the application;
- Anyone who holds a residence order with respect to the child, or who has the consent of all those in whose favour a residence order is in force;
- Anyone with whom the child has lived with for three out of the last five years;
- Where the child is in the care of the Local Authority, any person who has the consent of the Local Authority;
- Anyone who has the consent of all those with parental responsibility;
- Any person, including the child, who has the leave of the Court to apply.
The parents of a child cannot apply to become a Special Guardian.
How to apply
Applications can be made by an individual or jointly by two or more people who do not need to be married.
If you are independently making an application for an SGO (in other words it has not been recommended by the Local Authority or the Court), you must give three months written notice to the Local Authority of your intention to apply for an SGO on form C1 (or form C2 if you are asking for permission to make the application, or making the application in existing proceedings concerning the child) and form C13A, which you can get from the court or from the court website.
(There is an exception to this when someone has leave of the Court to make a competing application for an SGO where an application for an adoption order has already been made – this prevents the SGO application delaying the adoption order hearing).
If there is already an order under the Children Act 1989 in respect of the child the SGO application should be made to the court that made the earlier order. In all other cases the SGO application can be made in any Family Court but should be the nearest one to where the Child lives.
A court fee is usually required for Special Guardianship applications. Details of court fees can be found on the court website. Your financial situation may mean you do not have to pay a court fee, for example, if you are in receipt of a particular means tested benefit or you would suffer financial hardship if you pay the fee. If you are making your application to a Family Proceedings Court, the arrangements for helping with fees if you are on a particular means tested benefit or would suffer financial hardship are different.
The Court may also make a Special Guardianship Order in any family proceedings concerning the welfare of the child should it see fit. This is even in circumstances where no application for an SGO has been made and/or an application for an Adoption Order has been made.
Upon receipt of the notice of an SGO application, or upon the Court’s request for an SGO, the Local Authority (or somebody instructed by the Local Authority) will investigate and prepare a report for the Court regarding your suitability to be Special Guardians.
The report is expected to be completed within three months but there is no duty for local authorities to comply with this timescale.
The matters that are covered in the special guardian assessment report are outlined in Regulation 21 (Children Act 1989 Special Guardian regulations 2005) and Schedule and covers the following areas:
- Matters in regard to the child;
- Matters in regard to the child or their family;
- The wishes and feelings of the child and others;
- Matters in relation to the applicants;
- Details of the local authority completing the report including support services to be provided for the special guardian, the child or the birth parents;
- Summary of medical information and assessment;
- Summary of the implications of making an SGO for the relevant parties;
- The relative merits of special guardianship and other orders;
- Recommendation as to whether an SGO should be sought or alternative proposal;
- Recommendation as to what the contact arrangements might be for the child.
The Court may not make an SGO unless is has received the report detailing the suitability of the applicants.
If you are looking to apply or have any questions, please contact out team of solicitors on 0808 168 5550 or email us using the enquiry form below.
Other issues considered by the Court
Before making an SGO the Court will also look at whether to vary or discharge any other existing orders made under Section 8 of the Children Act 1989. This could include things like contact orders or a residence order. The Court should also consider whether a contact order should be made at the same time as the SGO. This often assists with setting a framework for the Special Guardian to maintain contact between the child and their relatives.
The Court may also give leave for the child to be known by a new surname and give permission for the child to be taken out of the country for longer than three months (if the Court does not grant leave then written consent of every person with parental responsibility must be obtained).
Varying or discharging the SGO
A SGO can be varied or discharged on the application of:
- The Special Guardian;
- The Local Authority in whose name a care order was in force with respect to the child before the SGO was made;
- Anyone with a residence order in respect of the child before the SGO was made;
- With leave of the Court (only if there has been a significant change in circumstances since the SGO was made):
- The child’s parents or guardians
- Any step-parent who has parental responsibility
- Anyone who had parental responsibility immediately before the SGO was made;
- The child (if the Court is satisfied that they have sufficient understanding).
If a question arises about welfare during any family proceedings then the Court may vary or discharge the SGO.
Support after the SGO has been made
The Local Authority is required to arrange support services for the Special Guardian. These are prescribed within the Regulations (Children Act 1989 Special Guardianship Regulations 2005 (1-3)), and include (but are not exclusive to) counselling, advice, therapy, respite care and financial support.
The Local Authority will assess the need for support services and in doing so will take the following aspects into account:
- The developmental needs of the child or young person;
- The parenting capacity of the prospective special guardian or special guardian;
- The family and environmental factors that shaped the life of the child or young person;
- What the life of the child or young person might be like with the special (proposed) special guardian;
- Any previous assessments undertaken in regard to the child or young person;
- The needs of the special guardian (proposed special guardian);
- The likely impact of an SGO where there are pre- existing relationships with the parent of the child or young person – for example when grandparents are the proposed as special guardians.
When the child leaves the care of the Special Guardian
A child, subject to an SGO, who was looked after by the Local Authority immediately before the making of a SGO may qualify for advice and assistance under the Children Act 1989 as amended by the Children (Leaving Care) Act 2000 and the Adoption and Children Act 2002. The child must be suitable for advice and assistance as detailed within Section 24 (1A) of the Children Act 1989.
Funding the SGO application
Unfortunately due to Government changes which came into force in April 2013 it is more difficult to obtain legal aid. Any application for legal aid and to cover the cost of a lawyer to represent you would by subject to a means and merits assessment. You also have to show that you have proof that the children have suffered child abuse or that the other parties to the case have subjected you to domestic abuse for which you have to have specific proof.
Sometimes the Local Authority, if they are supporting the application, will pay towards some of the costs for seeking advice from a solicitor. Otherwise, you will have to pay privately.
The Relevant Law to consider
Section 115 (1) of the Adoption and Children Act 2002 makes provision for SGOs under Section 14 A-F of the Children Act 1989.
Schedule 3 of the Adoption and Children Act 2002 contains some modifications.
The Special Guardianship Regulations 2005 set out provisions relating to support services.
The paramount consideration for the Court when considering an application for an SGO is the welfare of the child and the Welfare Checklist in Section 1 of the Children Act 1989 applies.
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