6.2.14 Special Guardianship Orders
This chapter should be read in conjunction with Permanency Panel Procedure.
Section 2.6, Court Report, was revised and updated in March 2016 to reflect the enhanced assessment and reporting requirements (for all applications made from 29 February 2016) as set out in the Special Guardianship (Amendment) Regulations 2016.
A Special Guardianship Order provides a legal status for a child that gives greater security than long-term fostering but without the absolute legal break from the birth family that occurs with an Adoption Order.
Examples of where Special Guardianship may be considered appropriate include:
- Some children, especially older children, who want the sense of security, but do not wish to make an absolute break with their birth family;
- Those who have religious or cultural difficulties with Adoption;
- Unaccompanied asylum seeking children;
- Foster Carers where there is a meaningful relationship with the parents.
Any decision about Special Guardianship must refer to the welfare checklist Section 1 Children Act 1989.
A child on a care order ceases to be looked after on the making of a Special Guardianship Order; however the making of a care order does not bring a Special Guardianship to an end.
A Special Guardianship Order remains in force until the child is 18 years of age.
A Special Guardian can appoint a guardian in the event of their death.
A child who was looked after immediately before the making of a Special Guardianship Order is eligible for leaving care support.
The Courts can make a Special Guardianship Order in any family proceedings even when no application has been made; this can be during Adoption proceedings; however in all circumstances the Local Authority will be required to provide a report.The Court can make a contact order, for example with the child's parents, at the same time as making the Special Guardianship Order.
Special Guardians have Parental Responsibility for the child, to the exclusion of anyone else who might have Parental Responsibility (apart from another Special Guardian). However, unlike Adoption, the child keeps the legal link with their parents.
- Special Guardians have clear responsibility for all day-to-day decisions (including medication, holidays, school trips etc.);
- Parents are still legally the child's parents but their Parental Responsibility is limited;
- Parents retain the right to consent or not to the child's Adoption or placement for Adoption;
- Written consent is required from every person who has Parental Responsibility, or Court's permission, for
- The child to be known by a different surname; or
- Removed from the UK for more than 3 months.
Applications for Special Guardianship may be individual or joint. Joint applicants do not need to be married. Special Guardians must be 18 or over.
A Court may make a Special Guardianship Order in respect of the child on the application of:
- Any guardian of the child;
- A Local Authority Foster Carer with whom the child has lived for one year immediately preceding the application;
- Anyone who holds a Child Arrangements Order with respect to the child, or who has the consent of all those in whose favour a Child Arrangements Order is in force;
- Anyone with whom the child has lived for three out of the last five years providing the child has not ceased to live with the proposed applicant more than 3 months before the making of the application;
- Where the child is in the care of a Local Authority, any person who has the consent of the Local Authority;
- Anyone who has the consent of all those with Parental Responsibility for the child;
- Any person, including the child, who has the leave of the Court to apply.
The parents of a child may not apply to become their own child's Special Guardians.
The Court may also consider a Special Guardianship Order where no application has been made, but must ask the Local Authority for a report.The applicant must give the Local Authority 3 months notice of the intention to apply for a Special Guardianship Order, except where an Adoption Order has been applied for and the Court gives leave for someone else to apply for a Special Guardianship Order. The Court may consider both applications concurrently.
Unlike Adoption Orders, Special Guardianship Orders can be varied or discharged on the application of:
- The Special Guardian;
- The Local Authority in whose name a care order was in force with respect to the child before the Special Guardianship Order was made;
- Anyone with a Child Arrangements Order in respect of the child before the Special Guardianship Order was made, with the leave of the Court:
- The child's parents or guardians any step-parent who has Parental Responsibility;
- Anyone who had Parental Responsibility immediately before the Special Guardianship Order was made;
- The child (if the Court is satisfied that the child has sufficient understanding).
Local Authorities are required to:
- Prepare a Court report about the suitability of applicants when an application is received or when Court makes a request;
- Carry out an assessment of needs for Special Guardianship Support Services, in cases involving looked after children;
- Consider whether to carry out an assessment of needs for support services when the children were not previously looked after;
- Prepare a plan where support is provided on more than one occasion and not limited to advice and information;
- Give notice of the assessment and plan;
- Consider any representation by the Special Guardian, and give notice of the decision;
- Regularly review the support services;
- Make arrangements for the provision of Special Guardianship support services.
The Local Authority where the child lives is responsible for undertaking the assessment of need and provision of support services, except where the child is looked after.
When a child has been looked after the Local Authority where the child was looked after will have responsibility for assessment, review and support for 3 years. After the 3 years the Local Authority where the Special Guardian lives will have the responsibility for support services.
When a child has not been looked after prior to the order, the Local Authority where the Special Guardian lives will always have the responsibility for the support services.Ongoing financial support (i.e. paid on a regular basis) which was agreed before the Special Guardianship Order was made remains the responsibility of the Local Authority who originally agreed it for as long as the family qualifies for payments.
Children who were looked after by a Local Authority immediately before the making of a Special Guardianship Order may qualify for advice and assistance.
The assistance is discretionary (not eligible under Leaving Care Act) and must be subject to an assessment by the leaving care team.
To be eligible for assessment the child must:
- Have reached the age of 16, but not the age of 21;
- If less than eighteen years old, have a Special Guardianship Order in force;
- If eighteen years old or above, have had a Special Guardianship Order in force when they reached that age; and
- Have been looked after by a Local Authority immediately before the making of the Special Guardianship Order.
The Local Authority is required to make provision of support services for Special Guardians. These include:
- Counselling, advice, information;
- Support Groups for children, parents and Special Guardians;
- Help with contact arrangements between child and parents and relatives;
- Therapy services for the child;
- Training for the Special Guardian;
- Respite care;
- Financial support.
Looked after Children
In cases involving looked after children, or children who were looked after immediately prior to the making of the Special Guardianship Order the following people must receive an assessment for support services.
- The child;
- The Special Guardian or prospective guardian;
- A parent.
and when appropriate the following will receive an assessment:
- Child of the Special Guardian;
- Any other person who has a significant relationship with the child.
Not previously Looked After Children
Where the child involved was not previously looked after, the following people may receive an assessment for support services if the council received a written request :
- The child;
- Special Guardian or prospective Special Guardian;
- Child's parent;
- Child of the Special Guardian;
- Any other person who has a significant relationship with the child.
Please read the following additional policies for further details on the criteria for financial supportProvision of Suitable Accommodation to Meet the Needs of Children in Care Procedure
When does the financial support start?
Financial support can be paid to facilitate arrangements for a person to become a Special Guardian or to support the continuation of such arrangements after a Special Guardianship Order has been made. Therefore for children that are not in the care of the Local Authority financial support can be provided before the order is made.
However no Special Guardianship periodic payments can start until the Head of Specialist Services has made a decision and the carers have agreed the proposed financial support and agreed to inform the Local Authority of any changes in their circumstances and their eligibility to receive financial support.
Where there are exceptional circumstances requiring financial support as a result of considerable hardship before the case has been presented to panel, consideration can be given to providing financial support through section 17 payments. However care should be given to ensure a precedent is not set before a full financial assessment has taken place. Any financial support under section 17 should be approved by the Head of Specialist Services through the HOB approval.
For children that are in the care of the Local Authority any Special Guardianship periodic payments will usually commence from the date of the Special Guardianship Order as prior to the order the carers will be receiving Fostering Allowance for the child.
For children that have not usually been looked after, the start date for periodic payments will usually be the date of the Head of Specialist Services making a decision about financial support.
Any backdating of payments will only be considered where there has been a delay from the point in time it would be reasonable to have reached a decision regarding a payment.
Backdating of payments will generally not pre-date a Special Guardianship Order being made where a child is fostered.
Backdated payments should not pre-date the decision of the Head of Specialist Services to agree financial support.
Backdated payments should be proportionate to need and where financial hardship is considered as a consequence of not providing the appropriate support when initially requested.In the case of significant periods of time, from when a request was made for support that was not appropriately supported upon reviewing all the circumstances of the case, any payment will be proportionate to need rather than based on entitlement.
Conditions for Financial Support to be Paid
The Special Guardians must agree to the following before any ongoing payments will be made.
They will inform the Children and Young People's Department immediately if:
- They change address;
- The child dies;
- The child leaves home, ends education or training, starts employment or qualifies for Income Support or Jobseekers Allowance in their own right;
- There is a change in their financial circumstances or their financial needs.
If the information is given orally, this must be confirmed in writing within seven days.
They will complete an annual statement of financial circumstances and needs and resources for the child.
Where no annual statement has been provided. A reminder will be sent giving 28 days notice of failure to comply. If there is still no response to this request the case will be referred to the Permanency Panel to consider making a recommendation to the Head of Specialist Services to stop the payments.
Respite careIf children have ongoing regular respite care provided and paid for by the Local Authority the allowance will be reduced accordingly.
Where there has been involvement in the last 2 years
- A district social work team will be responsible for assessing the needs of the child, parenting capacity of the child's parents and environmental factors;
- The Fostering Service will be responsible for assessing the prospective Special Guardian's suitability to care for the child, and their parenting capacity in relation to the child;
- A field Social Worker in a district team will have the responsibility for pulling the Court report together and presenting to Court;
- A field Social Worker in a district team will be responsible for assessing for support services prior to the order.
Unless the case is currently with the Adoption service, when they will continue to manage the assessments and Court reports.
Where there has been no involvement in the last 2 years
- The Adoption team will carry out all the assessments in relation to the child, suitability of the potential Special Guardians, support services and preparing the Court report and presenting to Court, unless it is identified that the child is in need;
- Where it is identified that a child is in need a referral will be made to the appropriate social work district team to carry out the assessment in relation to the child. The preparation of the Court report will then be joint between the Adoption service and fieldwork team.
Further information on responsibilities see Section 2.5, Process for Assessments.
An application for a Special Guardianship Order may involve a child that is known or not known to the Local Authority. In all cases the Local Authority is required to provide a report to the Court.Where the applicant(s) for a Special Guardianship Order have had no previous involvement with Specialist Services/Children's Specialist Services they must write to the Director of Children's Services. The application will be forwarded to CADT for allocation.
CADT will allocate to the appropriate team manager as follows:
- Where there has been involvement in the last 2 years allocate to field work team where there was last known involvement;
- Where there has been no involvement in last 2 years allocate to the Adoption team.
On receipt of the application the appropriate Social Worker (see Section 1.12, Who undertakes the assessments?) must immediately inform legal services of the application and liaise where appropriate with Fostering Service for carrying out the assessments and preparation of the Court report.
The appropriate Social Worker (see who undertakes assessments) must then write to the Prospective Special Guardians and the parents of the child informing them about the following:
- The inquiries to be made to prepare the report for Court;
- Support services for Special Guardianships;
- How to request an assessment for support.
A decision to progress to a Special Guardianship where the child is subject to a care order would be the result of a LAC review and/or a Legal Advice and Action Meeting.
The applicant must give 3 months notice of their intention to apply, except where an Adoption Order has been applied for and the Court gives leave for someone else to apply for a Special Guardianship Order.
Where the case is already in proceedings the Court may set timescales as short as 6 weeks.
The timescale from the LAC review to Court will be the time set by Court or 3 months whichever is the shortest.The Social Worker must be aware of the timescales required by the Court and if the report cannot be completed within the Court set timescale or the 3 months an application must be made to the Court for an extension.
The Social Workers will carry out assessments into the suitability of the applicant(s) to be Special Guardian(s), write a Court report that provides all the information detailed in Court Reports in Adoption/Special Guardianship Guidance and carry out an assessment for support services where appropriate. This will be a joint process between field work Social Workers, Fostering Service and/or Adoption Social Workers.
This must include gathering information and carrying out assessments in respect of the following:
- The child;
- The child's family;
- The prospective Special Guardian(s).
The Social Worker must write a report containing all the information from their assessments as detailed in Regulation 21 (see Court Reports in Adoption/Special Guardianship Guidance) and the Special Guardianship (Amendment) Regulations 2016.
Field Social Workers will be responsible for sections 1, 2, 3, 5 (a, d, e), 6 (1,l), 7, 8, 9, 10.
The Fostering Service Social Worker will be responsible for sections 4 and 5 (b & c), 6 (4,k).
The report must also include:
- An assessment of the current and likely future needs of the child (including any harm the child has suffered and any risk of future harm posed by the child’s parents, relatives or any other person the local authority considers relevant);
- An assessment of the prospective Special Guardian's parenting capacity including:
- Their understanding of, and ability to meet the child’s current and likely future needs, particularly, any needs the child may have arising from harm that the child has suffered;
- Their understanding of, and ability to protect the child from any current or future risk of harm posed by the child’s parents, relatives or any other person the local authority consider relevant, particularly in relation to contact between any such person and the child;
- Their ability and suitability to bring up the child until the child reaches the age of eighteen.
- The proposed contact arrangements and the support needs (See Section 2.8, Assessment for Support) of the child, parents / other relatives and the prospective special guardian;
- Implications of making a Special Guardianship Order for the child, parents, prospective Special Guardian and family, and other relevant people;
- Relative merits of Special Guardianship and other orders;
- Recommendation on whether Special Guardianship Order should be sought;
- Support plan where the child is looked after.
Where there are no records of checks in the last 12 months the fostering (or Adoption) service will be responsible for carrying out the following checks:
- Enhanced Disclosure and Barring Service;
- Specialist Services Locality Offices;
- Last employer;
- All employers where the Prospective Special Guardians have worked with children.
At the same time as carrying out the assessments on the suitability of Special Guardianships the child's Social Worker must consider whether to carry out an assessment for support needs for those who are entitled to an assessment for support needs (see Section 1.10, Who receives an Assessment for Support?).
The assessment for support must be done BEFORE writing the Court report.
Where no assessment for support is to be carried out, and a request has been made for support, the child's Social Worker must write to the applicant informing them of the decision and they have 28 days to appeal against the decision.
Where an assessment of support needs is required the following must be considered:
- The developmental needs of the child;
- The parenting capacity of the prospective Special Guardian to meet the child’s needs and the capacity of the Special Guardian or prospective Special Guardian to respond to those experiences;
- The family and environmental factors that shaped the child's life;
- What life might be like with the new family;
- Any previous assessments;
- The needs of the Prospective Special Guardians.
Where appropriate the people (i.e. Special Guardians and their family, the child, the child's parents) needing support services must be interviewed.
The Prospective Special Guardians must be provided with information about seeking benefit and tax advice. Referral can be made to the Welfare Rights Unit. The Special Guardians may be eligible for benefits that they were not previously eligible for e.g. Child Tax Credits, Child Benefit etc. It is important that anyone claiming income support claims Child Tax Credit. In determining any financial support, the Local Authority can take into account any other grant, benefit, allowance, or resource which is available.
Where financial support is being considered, the financial assessment officer must be contacted to carry out a full financial assessment. This financial assessment will consider the person's financial resources, their reasonable outgoings and commitments and the financial needs and resources of the child.The child's Social Worker must prepare a written report of the assessment and a support plan. A summary of the assessment, including the financial assessment must be included in the Court report.
When all the assessments are completed, the child's Social Worker must prepare a report, using the Report to Permanency Panel template, to present to the Permanency Panel. The report must contain sufficient information for the Permanency Panel to make a recommendation on the suitability of the carers to become Special Guardians for the child(ren), the appropriateness for the child(ren) to have a permanent home with the Prospective Special Guardians, the support plan and any financial support. The report must also contain the manager's comments and recommendations before presenting to panel.
The Social Worker must book an appointment to attend the Permanency Panel with the Permanency Panel administrator and all paperwork must be provided 10 days before the panel date. The paperwork must include the report to permanency panel, the financial assessment spreadsheet, the support plan and if ready the draft Court report.
Following the Permanency Panel the panel Administrator will circulate the draft minutes to all the members of the panel and any amendments must be forwarded to the Panel Chair for agreement 10 days from the date of the panel.See Permanency Panel Procedure for further details about the role of the Permanency Panel and Appendix 2: Administration for Permanency Panel for further details about the paperwork and approval process.
The decision for all applications for Special Guardianships and any support plans, including financial support will be made by the Head of Specialist Services following recommendations made by the Permanency Panel (see Permanency Panel Procedure). The Head of Specialist Services, will make a decision within 7 working days of receiving the panel minutes.
The Head of Specialist Services will write to the prospective Special Guardian detailing the proposed support plan, advise them of their rights to seek independent advice or advocacy and informing them that they have 28 days to appeal against the proposed decision.A final decision cannot be made about provision of support services until representations by the Special Guardians are considered.
Any representations by the Special Guardians to change the proposed support plan will be considered initially by the Chair of the Permanency Panel. If there are changes in the circumstances the Chair of the Permanency Panel will consider referring the case back to the Permanency Panel to be considered. If there is no new information the case will be referred to the Director of Children's Services who will make r will make the final decision.
When the Permanency Panel has recommended to pay financial support the financial assessment officer will prepare a financial agreement to be signed by the Head of Specialist Services.
After the Permanency Panel have considered the application for financial support and the Head of Specialist Services has approved the support, the financial agreement form (signed by the Head of Specialist Services) must be sent to the applicants. The Special Guardians or Prospective Special Guardians must sign and return one copy of the agreement to agree to the details of the payment.
No payments can start until the Special Guardians have either agreed the financial support plan, or 28 days have lapsed since the decision was made about the support plan, whichever is the earliest.A copy of the completed and signed Financial Agreement Form must be then sent to the Payments Administrator to enable processing of the correct payments.
When a care order has been discharged the LACES team must be informed, due to ending of the LAC status.Additional support from education may need to be discussed with appropriate services such as Behaviour and Educational Support Teams (BEST), Learning Mentors, Educational Social Workers, SENCO and the continuation of Individual Educational Plans and Personal Educational Plan.
Information in relation to assessments for Special Guardianships will be recorded on ICS.Ensure that the discharge of the care order is recorded in ICS. Where support is being provided, the case must remain open to the relevant district team until transfer has been agreed with the Adoption and Permanence Team and a review date recorded.
All support plans must be subject to reviews at least once a year. The cases can be transferred to the Adoption and Permanence Team following agreement at a transfer planning meeting.
Where the support plan includes financial support, the Special Guardian must provide an annual statement of their financial circumstances, the financial needs and resources of the child, their address and whether the child still has a home with them.
The review of financial support will be undertaken by the financial assessment officer and the Payments Administrator.
If the child with respect to whom a Special Guardianship Order is in force dies, the Special Guardian must take reasonable steps to give notice of that fact to:
- Each parent of the child with Parental Responsibility; and
- Each guardian of the child.
Family and friend Foster Carers (also known as kinship carers)
A relative or friend caring full-time for a child living away from the parental home and known to the Local Authority who would otherwise be likely to be with stranger Foster Carers, in Residential Care, independent living or adopted.
Family and friends are defined as Foster Carers when they are caring for a "looked after child" as defined by the legal status of the child. All family and friends foster carers must be assessed and approved. Where this is not possible approval can be granted for a period not exceeding six weeks under Regulation 38.
Local Authority Foster Carers - those carers who are recruited and approved by the Local Authority Fostering Service to care for specific groups of children.
Independent Foster Carers - carers recruited and approved by non - Local Authority Fostering Services.