Special Guardianship Orders

The scope for means-tested legal aid has now been extended to include applying for Special Guardianship Orders (SGO) rather than relying on the Local Authority to fund any application. But what exactly is a Special Guardianship Order and what does it mean?

What is a Special Guardianship Order?

The Adoption and Children Act 2002 introduced Special Guardianship and Special Guardianship Orders.

A Special Guardianship Order is an order appointing one or more individuals to be a child’s ‘special guardian’. It is a private law order made under the Children Act 1989 and is intended for those children who cannot live with their birth parents. It often gives children the chance to have a legally secure placement that cannot easily be disrupted.

It is a more secure order than a Child Arrangements Order for a child to live with someone because a parent cannot apply to discharge it unless they have the permission of the Court to do so.

Is special guardianship the same as adoption?

In short, the answer is no. The key difference between a special guardianship order and adoption is that special guardianship does not sever the legal relationship between parent and child.

Parents retain their parental responsibility, although the special guardians will hold “overriding” parental responsibility meaning they can make almost all of the day-to-day decisions regarding the child including who they have contact with and how often.

Who can apply for a special guardianship order?

You may be caring for a child under an informal arrangement when a parent could not do so and want to secure your position. Alternatively, maybe a social worker (Local Authority) has approached you and asked you to care for a relative or friend’s child as part of their involvement through child protection and the plan is for the child to remain in your care in the long term.

If you have been approached to be a special guardian as part of ongoing care proceedings the Local Authority may be asking the Court to make a special guardian order to conclude the care proceedings. In that case, a “stand-alone” application to the Court is not required.

It is likely that the Local Authority may fund a one-off advice session for you to consider the assessment and advise you in full of the legal implications.

You must be over 18 years of age and you cannot be the parent of the child in question. You can make an application on your own or jointly with another person. The following people may apply to be special guardians:

What does a special guardianship order do?

Upon the making of a Special Guardianship Order any Child Arrangements Order “live with”, Child Arrangements Order “spend time with” or Care Order will be discharged.

The main effect of the special guardianship order is that it confers parental responsibility, which can be exercised to the exclusion of any other person with parental responsibility apart from another special guardian. For instance, if you wished to send a child to a particular school but the parents opposed, you would be permitted to send that child to the school of your choice in any event despite the parent’s opposition to this.

As previously mentioned, the special guardian has responsibility for day-to-day decisions relating to a child’s care and upbringing. This order allows a special guardian to remove a child from the UK for up to three months without the consent of others with parental responsibility or the leave of the Court.

The Court can give permission for the child to be taken out of the jurisdiction for longer than three months. On making a Special Guardianship Order the Court may give leave for the child to be known by a new surname.

In addition, it gives the child security and long-term placement. It may also help to give the young person links to their birth parents too if deemed appropriate.

The Role of the Local Authority

The regulations say that the Local Authority report should include certain key information about the child such as:

Each Local Authority must make arrangements for the provision of special guardianship support services which may include:

What happens after an assessment?

This assessment determines whether a person has a need for special support services and whether the Local Authority can offer this service. The person should be given notice and information about the support offered and if appropriate the financial support too. It is important to seek legal advice before any provision is agreed upon so you are fully represented.

What about financial support?

It may be possible to make an application to your Local Authority for a Special Guardianship Allowance. Local Authorities will then have to work out how much fostering allowance would have been paid had the child has been fostered rather than cared for under a Special Guardianship Order. This is means tested and you can find out more information in the Special Guardianship Regulations 2005.