What is Special Guardianship?

There are circumstances when it is decided that it is not in a child’s best interests to live with their parents and the decision is made that they must live with someone else e.g. a grandparent, aunt or uncle.  To help ensure this new living arrangement provides long-term security for the child, the Government introduced The Adoption and Children Act 2002 which created Special Guardianship and Special Guardianship Orders.

Special Guardianship is considered by the court when looking to secure the long-term arrangements for a child living with a person who is not their parent.  Under this arrangement, the individual who will be taking care of the child is known as a Special Guardian. 

An individual will become a Special Guardian when they are granted a Special Guardianship Order by the court.

What is a Special Guardianship Order?

A Special Guardianship Order is an order appointing one or more individuals to be a child’s “special guardian” (or special guardians). 

When a special guardianship order is granted by the court, the Special Guardian will acquire parental responsibility for the child until the child reaches the age of 18. The order does not remove parental responsibility of the parents.

The Special Guardianship order gives the Special Guardian the permission to make day to day decisions for the child and to be the one responsible for making important decisions regarding the long-term care of the child e.g. where the child goes to school.

A special Guardianship order is there to provide long-term stability for the child and enable the Special Guardian to care for the child until the child reaches 18 unless the order is discharged sooner.

An special guardianship order can be varied or discharged by the court.  Some applicants to such an application will  require permission from the court before making the application. The court cannot grant permission unless it is satisfied that there has been a significant change of circumstances since the making of the special guardianship order.

The court may vary a special guardianship order of its own initiative in any family proceedings in which a question arises in relation to the welfare of the child who is the subject of the special guardianship order.

Who can apply for a Special Guardianship Order?

The individual must be eighteen and over and must not be a parent of the child in question. Joint applications may be made.

It is possible to apply for a Special Guardianship Order if:-

  1. You are a guardian of the child;
  2. You are an individual who has been granted a Child Arrangements Order recording that the child is to live with them;
  3. You are a local authority foster parent with whom the child has lived for a period of at least one year immediately before the application for a special guardianship order is lodged with the court;
  4. You are a relative of the child and the child has resided with the you for at least one year immediately before the application for a special guardianship order is lodged with the court;
  5. You are an individual whom the child has lived with for three of the last five years (and the child has not stopped living with you for more than three months before the application for a special guardianship order is lodged with the court);
  6. You are an individual who wishes to be a special guardian for a child in the care of the Local Authority and the Local Authority consents to the application for a special guardianship order to be granted by the court.
  7. You are an individual who has been granted permission by the Court to make an application for a special guardianship order.

Notice to the Local Authority and Assessment Report.

Before an individual applies to the court for a Special Guardianship Order, they must first write to the Local Authority of their intention to proceed with the application.  Notice must be given to the Local Authority three months before the application for a special guardianship order is lodged with the court.  The Local Authority must then carry out an investigation and the results of that investigation must be recorded in an assessment report to be considered by the court along with the application for a Special Guardianship Order.

The Assessment report, produced by the Local Authority, should include information about the child and if possible their wishes and feelings, information about the child’s family, information about the individual looking to be a special guardian, information about the Local Authority producing the report, any input for medical professionals, the implications of making the Special Guardianship Order and recommendation regarding contact with the parents and any other family members.

Under The Adoption and Children Act 2002 support services may be available to Special Guardians.  If the child concerned is a looked after child by a Local Authority then the Local Authority should include in the assessment report an assessment for special guardian support services and examples of those services are:

  • Financial Assistance;
  • Mediation to assist with contact arrangements;
  • Counselling;
  • Access to support groups;
  • Therapeutic services.

If the child concerned is not a looked after child by a Local Authority there is not an automatic entitlement for the Local Authority to include in the assessment report an assessment for special guardianship support services.  A request will need to be made to the Local Authority to carry out an assessment for special guardianship support services.

Making a Special Guardianship Order

Before the Court make a Special Guardianship Order, the court must consider whether if the order were made:

  1. A contact order should also be made with respect to the child and their parents or other members of the birth family; and
  2. Any order under Section 8 of the Children Act 1989 in force with respect to the child should be varied or discharged.

The Court will also need to consider the “welfare checklist” which asks the court to consider the following:-

  1. The ascertainable wishes and feelings of the child (in light of his age and understanding).
  2. The child’s physical, emotional and educational needs.
  3. The likely effect on the child of any change in his circumstances.
  4. .The child’s age, sex, background and any characteristics of his which the court considers relevant.
  5. Any harm which the child has suffered or is at risk of suffering.
  6. How capable each of the child’s parents (and any other person in relation to whom the court considers the question to be relevant) is of meeting his needs.
  7. The range of powers available to the court under the Children Act 1989 in the proceedings in question.

The court will also have regard to what is known as the “no order” principle. This is the principle that the court should make no order unless it considers that doing so, would be better for the child than making no order at all.

If you need any advice, please call us on 020 8464 4242 or email enquiries@wellerslawgroup.com