What are the ‘rules’ for special guardianship orders?

Special guardianship orders are made when a child lives permanently with carers who are not their parents. The Adoption and Children Act 2002 was introduced to offer greater long-term security without permanently severing the connections between the child and their birth family. But what are the rules for a special guardianship order? Read on to find out.

If you have concerns about your children and you feel you need legal advice, contact specialist family lawyer Helen Miller of Stowe Family Law. She is an exceptionally skilled family law expert with over 20 years’ experience, and Managing Partner at this well known specialist family law firm.

What does a special guardianship order do?

A special guardianship order confers various rights and duties on the holder including:

• The duty to care for a child
• The right to have the child living with them
• The responsibility and authority for deciding where the child attends school or what medical treatment they should receive

Who has parental responsibility under a special guardianship order?

Special guardians are given parental responsibility for the child until they reach the age of 18, unless the order is discharged before then. Parental responsibility can be exercised to the exclusion of any other person with parental responsibility, apart from another special guardian. This allows special guardians to make important decisions about the child without consulting with the child’s parents, although there are exceptions to this.

A special guardianship order does not remove the parent’s parental responsibility, and they retain the right to be consulted on major decisions concerning their child, as detailed below.

Decisions a special guardian cannot make regarding a child in their care

Special guardians cannot make the following decisions without first obtaining consent from every person holding parental responsibility:

• Circumstances where the law demands the consent of all parties with parental responsibility such as sterilisation or circumcision
• Rights that a parent has in relation to the child’s adoption or placement for adoption
• Causing the child to be known by another surname
• Removing the child from the UK for a period of more than 3 months

Who is responsible for the child financially under a special guardianship order?

A local authority must make arrangements for the special guardian to be supported, although the level of service depends on the area they live. Support services are defined as:

• Financial support
• Therapeutic services to ensure the continuance of the relationship between the child and their special guardian, including training to meet special needs and respite care
• Mediation and assistance regarding contact between the child and their parents/other relatives
• Counselling, advice, and information

Who can apply for a special guardianship order?

A special guardian must be over the age of 18 and cannot be the child’s parent. It can be a single or joint application with another party or parties. Anyone connected to the child can make an application for a special guardianship order, however, unless they fall into any of the categories below, they will need the leave (permission) of the court before making the application.

People who can apply to court without leave include:

• A guardian of the child
• Anyone who has a residence order/child arrangements order in force regarding the child
• Anyone the child has lived with for a period of at least 3 years. This does not necessarily have to be continuous, but must not have started more than 5 years before, or ended more than 3 months before making the application
• Where the child is in the care of the local authority, any person who has its consent to make the application
• If there is no residence order/child arrangements order or care order in force, anyone who has the consent of each person with parental responsibility for the child
• A relative with whom the child has lived for a period of at least one year before the application

How do I apply for a special guardianship order?

There are two ways a special guardianship order can be obtained. If there are ongoing proceedings currently before the court, it can appoint special guardians without a formal application needing to be made. The second way is from those putting in applications because they wish to become guardians themselves. Before making an order, the local authority will investigate and prepare a report, which, amongst other factors, looks at the applicant’s suitability. This is discussed in more detail below.

The initial application should be made on Form C1. Form C13 should be completed if there are supporting statements for the application. Within 10 days of receipt, the court will set out a case number and a date for the first hearing to discuss timetabling and how the case will be dealt with. This is referred to as a ‘first directions hearing’. Relevant parties must attend all hearings unless they are told otherwise, and the court excuses them.

Who needs to be told about a special guardianship application?

A copy of the application form must be sent together with details of the hearing date and location to everyone who holds parental responsibility. If there is a current care order, then copies of the application should also be sent to:

• Everyone with parental responsibility, including the local authority under the current care order
• The court appointed CAFCASS children’s guardian
• Children’s services department of the local authority or the local authority where the child is staying, if different
• Everyone caring for the child
• The home where the child is staying if it is a registered children’s home, voluntary home, or refuge
• Everyone the child has lived with for at least three years before making the application
• Anyone else named in a current court order
• Anyone involved in other court proceedings that are ongoing and which might be affected by the application

What factors do the local authority look at when making their assessment for an SGO?

As stated above, before making a special guardianship order, the court will ask the local authority to conduct an assessment. This includes:

• Looking at information on the child’s birth parents, siblings, and relatives
• An analysis of the child’s relationship with their parents and other relevant family members
• The wishes and feelings of the birth parents and the child (depending on their age and understanding)
• Assess the proposed special guardian’s family background, parenting capacity, and living conditions
• Detailed study on the benefits the child could receive if the order was made, with the primary focus being the long-term effects of the decision
• Evaluate any medical conditions the child may suffer from, and that of the birth parents and proposed guardians
• Look at any previous assessments

Following the completion of the assessment, the level of support needed will become apparent and address whether the local authority can provide the services required.

What is the effect of a special guardianship order?

The order discharges any existing care order and allows the special guardian to make day-to-day decisions regarding the child’s care and upbringing. From the child’s perspective, it gives them security arising from a long-term placement in a loving and supportive environment.