Special Guardianship Order

Background and Legal Framework

Special guardianship was introduced in the Children Act 1989 and further refined by the Adoption and Children Act 2002. It was designed to provide a stable and permanent home for children who, for various reasons, cannot live with their birth parents but for whom adoption is not suitable.

Special Guardianship Orders are intended to offer children and their carers greater stability and legal certainty, without completely cutting off the child from their birth family. This is particularly important in cases where maintaining some level of contact with the birth parents is in the best interest of the child.

Who Can Apply for an SGO?

Individuals who can apply for a Special Guardianship Order include:

1. Relative of the Child: This could be grandparents, aunts, uncles, or other family members.
2. Foster Carer: A foster carer with whom the child has lived for at least one year immediately preceding the application.
3. Guardian: A person who has been appointed as the child’s guardian.
4. Local Authority Foster Parent: A local authority foster parent with whom the child has lived for at least one year.
5. Any person with the consent of those with parental responsibility: If all parties with parental responsibility agree.
6. Any person the child has lived with for three of the last five years: Provided this period ended not more than three months before the application.
7. A person who has the consent of the local authority: If the child is under local authority care.
8. Any other person: With the permission of the court.

Process of Obtaining an SGO

The process of obtaining a Special Guardianship Order involves several key steps:

Initial Consideration and Consultation:

• The prospective guardian should discuss their intention to apply for an SGO with the local authority.
• This initial consultation helps determine whether special guardianship is the most suitable option for the child.

Notice of Intention to Apply:

The prospective guardian must give three months’ written notice to the local authority of their intention to apply for an SGO. This gives the local authority time to assess the situation and prepare a report for the court.

Assessment by the Local Authority:

• The local authority will assess the applicant’s suitability to become a special guardian. This assessment includes background checks, interviews, and evaluating the applicant’s ability to meet the child’s needs.
• The assessment report will consider factors, such as the child’s wishes and feelings, the applicant’s capacity to provide a secure and loving home, and the potential impact on the child’s welfare.

Submission of Application to the Court:

• The prospective guardian must submit their application and the local authority’s assessment report to the court.
• The court will schedule a hearing to review the application and consider the evidence presented.

Court Hearing and Decision:

• During the hearing, the court will evaluate whether granting an SGO is in the child’s best interest. This decision is based on the welfare checklist outlined in the Children Act 1989.
• If the court is satisfied that the SGO is appropriate, it will issue the order, granting the applicant parental responsibility for the child.

Rights and Responsibilities of a Special Guardian

Once a Special Guardianship Order is granted, the special guardian assumes parental responsibility for the child. This responsibility is shared with the birth parents, but the special guardian can make most decisions about the child’s upbringing, excluding the birth parents in most areas. This means that the special guardian can make nearly all decisions about the child’s upbringing, including:

1. Education: The special guardian can decide which school the child attends and make educational choices on their behalf.
2. Health: The special guardian can consent to medical treatment for the child and make decisions regarding their healthcare.
3. Religion: The special guardian can make decisions about the child’s religious upbringing.
4. Travel: The special guardian can take the child abroad for up to three months without needing the consent of the birth parents.

Contact with Birth Parents

A Special Guardianship Order (SGO) enables the child to maintain contact with their birth parents, unlike adoption, where the legal relationship is entirely terminated. The court can issue a contact order along with the SGO, detailing the type and frequency of contact. This is important to ensure that the child stays connected with their birth family, which is essential for their emotional and psychological welfare.

Support for Special Guardians

Special guardians may be eligible for various forms of support to help them fulfil their role effectively:

1. Financial Support: Special guardians may receive financial assistance from the local authority to help cover the costs of raising the child. This support is means-tested and may include allowances similar to fostering allowances.
2. Practical Support: Local authorities can provide practical assistance, such as help accessing education and healthcare services.
3. Therapeutic Support: Children who have experienced trauma or disruption may require therapeutic support. Local authorities can help special guardians access counselling and other therapeutic services for the child.
4. Training and Advice: Local authorities often offer training and advice to special guardians to help them manage the challenges of their new role.

Challenges Faced by Special Guardians

While special guardianship orders provide a valuable and stable solution for many children, they are not without challenges. Some of the difficulties that special guardians may encounter include:

1. Complex Family Dynamics: Managing the relationship between the child, the special guardian, and the birth parents can be challenging. Balancing the child’s need for stability with the birth parents’ desire for contact requires sensitivity and careful handling.
2. Emotional and behavioural issues: Many children who are placed under SGOs have experienced significant trauma, neglect, or abuse. Special guardians must be prepared to address complex emotional and behavioural issues that may arise.
3. Legal and Administrative Responsibilities: Special guardians must manage various legal and administrative responsibilities, including handling court proceedings, maintaining records, and liaising with local authorities.
4. Financial Pressures: Despite the availability of financial support, some special guardians may still face financial pressures, especially if they have to reduce their working hours or make other sacrifices to care for the child.

Legal Considerations and Amendments

The legal framework surrounding Special Guardianship Orders has evolved since their introduction. Various amendments and considerations have been made to ensure that SGOs continue to serve the best interests of children effectively:

1. Special Guardianship (Amendment) Regulations 2016: These regulations introduced stricter assessment criteria for prospective special guardians, including a requirement for a more thorough exploration of the potential guardian’s relationship with the child and their ability to provide long-term care.
2. Court of Appeal Decisions: Several Court of Appeal decisions have clarified the interpretation of SGOs, particularly in relation to the balance of power between special guardians and birth parents. These decisions have reinforced the need to carefully consider the child’s welfare and the importance of stability in their upbringing.
3. Ongoing Review and Consultation: The Department for Education periodically reviews the effectiveness of SGOs and consults with stakeholders, including local authorities, legal professionals, and advocacy groups, to identify areas for improvement and ensure that the legal framework remains fit for purpose.

Conclusion

Special Guardianship Orders (SGOs) are an essential means of securing the long-term welfare of children who cannot live with their birth parents. SGOs grant special guardians parental responsibility, providing a stable and supportive environment while maintaining the child’s connection to their birth family. However, obtaining and managing an SGO involves complex dynamics and challenges, requiring careful consideration and support.

As legal professionals, we are responsible for guiding prospective special guardians through the legal process, ensuring that they understand their rights and responsibilities. Working closely with local authorities, courts, and support services, we aim to help special guardians provide the best possible care for the children entrusted to them. Our ultimate goal is to ensure that every child has the opportunity to thrive in a loving, stable, and supportive environment, with their welfare always at the forefront of our efforts.