Special Guardianship Orders
SCOPE OF THIS CHAPTER
This chapter sets out the legislative framework and local procedures for dealing with applications for Special Guardianship and the issues around their support plans.
Special Guardianship Guidance (DfE, 2017)
Firm Foundations: Complaints about Council Support and Advice for Special Guardians (Local Government and Social Care Ombudsman) (May 2018)
Court Reports in Adoption, Placement and Special Guardianship Order Applications: Guidance
This chapter was reviewed in June 2022 and updated to reflect local guidance where required.
1. Special Guardianship, Parental Responsibility, and Applicants
In 2002 the Adoption and Children Act 2002 amended Section 14A of the Children Act 1989 to introduce Special Guardianship Orders. The Adoption and Children Act was fully implemented in 2005 with the provisions for special guardians coming into full force. The Special Guardianship (Amendment) Regulations 2016 had the purpose of strengthening and bringing consistency to the assessment, support, and reporting requirements.
The permanence arrangements and outcomes for a Looked After Child are the paramount concern for Merton Children's Services. Special Guardianship offers a unique means of achieving permanence for a child when their adoption is not achievable because of reasons of age or other challenges, or not appropriate because of the wishes of the child, or the culture, religion, and wishes of the parents and wider family members. Special Guardianship invests the guardian with shared Parental Responsibility, along with the child's parent, but enables the guardian to exercise parental responsibility without reference to the parent. The only limitations on the guardian's decision-making is when the law requires the consent of each person with parental responsibility (sterilisation of the child); agreement to adoption, or, without leave from the court, removal of the child from the UK for 3 months, or change of the child's name. The parents always remain the legal parents when a child is subject to special guardianship. The guardianship lasts until the child becomes 18 years of age.
For some children where adoption is not achievable or appropriate, special guardianship provides them with the security of being in a permanent placement and in the permanent care of their guardian. For some family members or connected persons, wishing to care permanently for the child, special guardianship provides the means of exercising that care and decision-making in the child's life without the removal of the parents own rights and responsibilities through adoption. If the child is subject to a Care Order, this is automatically revoked by the granting of a Special Guardianship Order and the child is no longer looked after by the council or subject to care legislation.
Nevertheless, children subject to a Special Guardianship Order are eligible as previously Looked After Children for additional support with their education (Sections 20(4) and 20A(4) of the Children and Young Persons Act 2008). For further information please see Education of Children with a Social Worker, Looked After and Previously Looked After Children Procedure.
In any proceedings concerning the welfare of the child the court can make a Special Guardianship Order whether or not an application has been received. This includes adoption proceedings. In all other circumstances the order is made upon application to the court. Any person with the consent of the local authority may apply to become the child's special guardian if the child is subject to a care order. Anyone with the leave of the court may also apply, and this includes the child. In all other instances, the leave of the court or the consent of the local authority is not required, if the person(s) applying is:
- A local authority foster carer (related to the child or not) with whom the child has lived for one year prior to the application;
- The legal guardian; Named in a Child Arrangements Order as the person with whom the child is to live;
- Has the consent of each person named in a Child Arrangements Order with whom the child is to live;
- Has the consent of all those with parental responsibility;
- Has cared for the child for three out of the last five years and no later than three months before the application.
A Special Guardianship Order can be discharged or varied. It is not discharged If the court grants a care order to the local authority for a child who is subject to special guardianship, in this case, the special guardian(s) retain their parental responsibility, but now it is shared with the local authority. During the proceedings for the care order, the court may decide to discharge or vary the Special Guardianship Order. Also, if the child was subject to a care order prior to the Special Guardianship Order, the local authority named in the care order can apply for the Special Guardianship Order to be discharged or varied. Anyone named in a Child Arrangements Order as a person with whom the child is to live, prior to the making of the Special Guardianship Order can also apply for the Special Guardianship Order to be discharged or varied. The special guardian can apply for the order to be discharged or varied. If the court is of the view that there has been a significant change in circumstances since the special guardianship order was granted, it may give leave to the child's parents, any step-parent with parental responsibility or anyone who had parental responsibility prior to the order being made, or to the child, to apply for the order to be discharged or varied.
2. Private Applications
There are two application processes, one for children looked after by Merton, and one for persons making a private application for a child not in the care of Merton and not subject to care proceedings.
For anyone who is a resident of the Borough of Merton and wishes to make private application for a Special Guardianship Order, three months written notice must be given to Merton Children's Services. The applicant can do this in person, or give notice of their intention through a legal advisor acting for them. In some circumstances, it is the court that will make the request to Merton, and may waive the three months notice period. Once received by Merton's Access to Resources Team, the duty social worker will contact the person to explore the circumstances of their choosing to make application, and will liaise with the applicant's legal advisor if there is one. An experienced social worker will be duly allocated from within the Access to Resources Team to begin the assessment, undertake the checks, and prepare the report for the court.
The checks will include, statutory and medical checks, enhanced Disclosure and Barring Service (DBS) checks, and personal references. The assessment will consider the current and likely future needs of the child, including any safeguarding concerns, and the parenting capacity of the prospective special guardian, including their understanding of the child's needs, of any harm the child has suffered and its impact, and of any risks posed to the child by their parents or by others, and of their ability to bring up the child until age 18 years. The wishes and views of the child will be included in the assessment and the assessment will also include contact arrangements with parents and other persons with parental responsibility and persons significant to the child. The assessment will be completed within twelve weeks from the date on which the notice was given. The report will include the enhanced assessment and reporting requirements set out in the Special Guardianship (Amendment) Regulations 2016. See Court Reports in Adoption, Placement and Special Guardianship Order Applications: Guidance.
The recommendation of the social worker's report must be approved by the Head of Service for Looked After Children, Permanence & Placements.
3. Applications for Looked After Children
Special Guardianship Order applications for Looked After Children may arise during care proceedings. The child's parents may identify alternative potential special guardians for the child, the child may express a wish for a particular person to care for them, persons with a prior connection to the child may identify themselves as potential special guardians, and, if the child has been placed with them for more than one year, the child's foster carer may wish to become their special guardian. Sometimes the child's social worker will identify a person or persons who may be appropriate to care for the child as special guardians and will invite them to consider this possibility. The child's social worker will meet with the prospective applicant to provide them with information and advice so that they can make an informed decision before committing themselves in writing to giving notice of their intention.
People thinking about becoming special guardians will be provided with clear, user-friendly information to help them make informed choices. This should include information on support available and how this is reviewed.
Local information – to follow
If the foster carer who wishes to make application is a foster carer for Merton, the expectation is that they will first explore their intention with their supervising social worker from the Fostering Team, who will then notify the child's social worker in writing. When the child's social worker receives written notification of the applicant's intention, the social worker refers the applicant to the manager in the Access to Resource Team, and a social worker is located from this team to undertake the initial Viability Assessment.
The Viability Assessment assessment is a preliminary means of establishing the likelihood of the prospective special guardian(s) being able to meet the safeguarding, health, developmental, physical and emotional needs of the child. It will consider the motivation of the applicant, their relationships with their own children and/or the wider family, their network of support, their experience of parenting, and their insights into why the child cannot be cared for by their parent(s). The statutory checks are undertaken. If the viability assessment is positive, the manager within the Access to Resource Team will authorise that the full assessment and report is completed.
In emergency circumstances, the child may have been placed with a family member or connected person either with the Section 20 consent of the person(s) with parental responsibility or by means of Police Protection, Emergency Protection Order or Interim Care Order, in which case, the Viability Assessment will have been completed immediately prior to the child being placed. The approval of the Designated Manager for the child to become looked after is required prior to the placement. See Care Planning Procedure. In all other circumstances if the child is looked after and placed with a family member or connected person, a planning meeting will have been held either prior to the placement or within five days of the placement commencing. If the intention is for the child to remain in this placement for longer than 16 weeks from the date when the child was placed, the social worker must make immediate referral to the Access to Resources Team so that a social worker is allocated to complete the initial part of CoramBAAF Form C and the approval of the Agency Decision Maker is given to the temporary Connected Person Fostering Placement. See Placement with Connected Persons Foster Carers Procedure.
If, in the course of care proceedings the Viability Assessment is positive for the applicant and agreement has been given for the full assessment and report to be completed for the court, the social worker will liaise with the Merton's legal advisors to ensure that the applicant can access 2 hours of legal advice from an independent firm, to be funded at public rates. The recommendations of the report for special guardianship arrangements are not subject to Merton's Fostering and Permanence Panel, and the decision to recommend an applicant to the court for special guardianship must be approved by the Head of Service for Looked After Children, Permanence & Placements. This applies in all cases, regardless of whether the child is Looked After by the Local Authority. It should be noted that anyone who meets the criteria to apply without leave of the court (see Section 1, Special Guardianship, Parental Responsibility, and Applicants) may exercise their right to a full assessment and report irrespective of a negative viability assessment.
4. Special Guardianship Support and Entitlements
Children in special guardianship arrangements are benefitting from placements that enable them to live in safety and security and to grow towards adulthood confident in the permanence of the relationship that they have with their special guardian(s). Merton provides the services to support these arrangements. If the child was looked after by Merton at the time that the Special Guardianship Order was made, or immediately prior to it, the council has responsibility for providing support for the first three years even if the Special Guardian is not living within the borough, after which time, the local authority where the child is living becomes responsible. The only exception to this is if, prior to the order being made, Merton agreed to ongoing financial support for the family, in which case Merton will continue the financial support for as long as the family meets the criteria.
For Looked After Children, the child and the special guardian (or prospective special guardian) must be assessed for support at their request. So too must the parent(s) in relation for support for contact or discussion groups. The local authority may offer an assessment of need for support services to the child of a special guardian or to any person with a significant on-going relationship with the child.
If the child is looked after at the time the Special Guardianship Order is made, or immediately prior to it, by another local authority, then that authority is responsible for assessing and providing support services.
If the child is/was not looked after by Merton or by another local authority at the time the special guardianship order was made, or immediately prior to it, the responsible authority is the one in which the Special Guardian is living. In these circumstances the local authority may offer an assessment for support services may offer an assessment for support services at the request of the child, special guardian or parent.
The range of support services includes:
- Services to enable children, special guardians and parents to discuss matters relating to special guardianship;
- Assistance including mediation in relation to contact between the child and their parents, relatives or significant others;
- Therapeutic services to the child;
- Assistance to ensure continuance of the relationship between the child and special guardian, including training to meet any special needs of the child, respite care, mediation;
- Counselling, advice and mediation;
- Financial support (see Section 5, Financial Support).
These services are not to be seen in isolation to mainstream and universal services, and families will be assisted to access universal services where appropriate and also to ensure that they are receiving entitlements to benefits, particularly, child benefit, and tax credits, such as Child Tax Credit and Working Tax Credit.
5. Financial Support
Only the prospective or existing special guardians for a child who is or may become subject to special guardian order, may ask to be assessed for financial support from Merton, if the child was looked after by Merton, at the time the Special Guardianship Order was made, or immediately prior to it. Any exception to this criteria must be agreed by the Service Director.
N.B. No parent of a child subject to special guardianship will be eligible for financial support under this policy.
The financial income and means of the special guardian(s) are taken into account when assessing the request for financial support. The only means that must be disregarded from the assessment is any financial support from the local authority in respect of legal fees to the prospective special guardian in support of their application.
Where the child's special guardian(s) was previously the child's foster carer(s), the local authority can maintain the fostering allowance for two years. The decision to do this, or to extend payments beyond two years, will be made by the Director of Children, Schools and Families, on application from the Team Manager to the Director of Children, Schools and Families from the Head of Service for Looked After Children, Permanence and Planning.
Special guardians who are receiving financial support will be formally required to complete the Annual Financial Assessment Review Form for consideration of any changes to be made to the payments. If significant change is to be made, approval will be sought from the Head of Service for Looked After Children, Permanence and Placements, and the special guardian will be notified in writing of the reasons for their decision. If the special guardian does not return the annual review form within the requested timescale, a reminder will be sent. If no reply is received within 10 days of the written reminder letter, the payments will be suspended.
See: Local Resources, Special Guardianship Allowances and Support, for the template Financial Assessment Form.
6. The Assessment and Support Plan
For children who are/were looked after by Merton at the time the Special Guardianship Order was made, or immediately prior to it, any request for assessment of support services received from the child or the special guardian (or the parent, in regard to contact, discussion groups) will be undertaken by a social worker from the Access to Resource Team. This includes assessment of any request from the child of a special guardian or from a person with a significant on-going relationship to the child. The assessment may lead to a Special Guardianship Support Plan. The assessment will be undertaken by a social worker from the Access to Resources Team. The assessment may lead to a Special Guardianship Support Plan.
As a previously looked after child, the child subject to a Special Guardianship Order will be entitled to additional education support. This will be accessed through the designated teacher in the child's school. For further information please go to Education of Looked After and Previously Looked After Children.
From 1 September 2021, the School Admissions Code provides that children being raised by family and friends carers under a Special Guardianship Order or Child Arrangements Order, who struggle to get a school place during the year, will be supported in finding one.
For children not previously looked after, the local authority has discretion about whether or not to undertake an assessment of the request for support. If, after careful consideration, the Access to Resources Team decides not to assess, they will notify the requestor in writing of the reasons for the decision.
The Assessment Framework to be found in Working Together to Safeguard Children will be used for the assessment, and taking into account:
- Developmental needs of the child;
- The child's educational needs;
- Parenting capacity of the prospective special guardian;
- Family and environmental factors for the child;
- What the life of the child might be like with the prospective special guardian;
- Any previous assessment that is relevant in relation to the child or prospective special guardian;
- Needs of the prospective special guardian and their family;
- Impact of the Special Guardianship Order on the relationship between the child, parent and special guardian.
At the end of the assessment, the social worker from the Access to Resources Team, as applicable, will identify if any ongoing support services are to be provided and if so of what kind, and if any financial support is to be paid, including the amount and conditions attached. If this meets with the approval of the Head of Service for Looked After Children, Permanence and Placements, the social worker will complete the Special Guardianship Support Plan.
If the child is in proceedings, the Special Guardianship Support Plan will be attached to the social worker's report to the court. If the child is already subject to the order, the Special Guardianship Support Plan will be sent to the person requesting support. The social worker will inform the person to whom they are sending the Special Guardianship Support Plan, that they have ten days in which to make representation about the proposed plan to the Head of Service for Looked After Children, Permanence and Placements, who will decide if the plan should be amended. See Local Resources, Special Guardianship Allowances and Support, for the template Special Guardianship Support Plan.
If the social worker does not identify support needs, they will discuss the assessment with their manager, and then write to the requester with information about the outcome of the assessment and their reasons for it. They will advise the person requesting support that they can make representation about their decision within ten days to the Head of Service for Looked After Children, Permanence and Placements, who will decide if the assessment should be amended.
Template outcome and notification letters are to be found in the Local Resources, Special Guardianship Allowances and Support.
7. Special Circumstances
If an urgent request for support is received by the Access to Resources Team, the relevant team manager will consider if support should be provisionally offered pending the commencement or completion of the assessment process. In certain cases this may include Section 17 assistance. If the team manager does consider such provisional assistance to be immediately required in order to support the special guardianship arrangement, the manager will request approval from the Head of Service for Looked After Children, Permanence and Placements.
8. Death of a Child
In the circumstances that a child dies who is subject to a Special Guardianship Order, the special guardian has the responsibility of notifying this fact to each person with parental responsibility, and each guardian of the child, or of taking all reasonable steps to do so.
Appendix 1: Good Practice: Getting it Right First Time
The following suggested good practice is taken from the Local Government and Social Care Ombudsman report Firm Foundations: Complaints about Council Support and Advice for Special Guardians (May 2018).
The following is not an exhaustive list but sets out some of the positive steps councils can take:
- Give early, clear and unambiguous advice to people who are considering becoming special guardians. Consider how this can:
- Explain what is special guardianship and what this means for parental responsibility, legal security and stability;
- Explain the council's role and that of the court;
- Set out who can apply to be a special guardian and what alternatives could be more suitable;
- Make the process of applying to be a special guardian clear, including the role of the council in writing a report to court;
- Explain the assessment process before becoming a special guardian. Explain that applicants may need to complete some training.
- Be as clear as possible about the support that might be available and how the council will assess the applicant's support needs;
- Be as unambiguous as possible about the fixed term duration of support and what it is likely to be used for;
- Back up verbal advice and guidance in writing wherever possible, particularly where this may have long term consequences;
- Manage expectations early on, for example where special guardians expect ongoing support or help with major personal expenditure;
- Be as clear as possible with applicants that any support may be time limited;
- Develop advice for social workers involved in supporting potential and actual special guardians. This could include:
- A flow chart showing responsibilities at key stages such as suitability assessment, financial assessment, permanence panel and court;
- A checklist of things to cover at first assessment visit (for example explaining the process and financial situation);
- A summary of the SGO assessment process including child information (for example attachment issues and any early neglect or trauma), carers information (for example current relationship and stability).
- Keep clear and transparent records of contact with special guardians. This is always important, particularly where guardians will probably be supported by several different social workers and other officers over several years;
- Write support plans that are clear, in plain English and set actions that are as specific, measurable and achievable as possible so the council and guardian can review progress;
- Make sure support plans:
- Are shared, discussed and agreed with special guardians, and this is well documented;
- Are written so that they are easy to evaluate and keep under review. It should be easy for the council and guardian to decide whether all the support has been provided;
- Are regularly reviewed and kept up to date. Make sure plans continue to meet the child's needs as they change;
- Set out the approach to calculating special guardianship allowance. Explain this at the earliest stage as possible, making clear this will be reviewed and depend on evidence of continuing needs;
- Keep the best interests of the child at the forefront of decision making.