Special Guardianship Guidance

Statutory guidance on the special guardianship services local authorities need to provide in accordance with the Children Act 1989.

Form C13A

Form C13A is used to provide a statement in support of your application for a special guardianship order. You can add a supporting statement to your application to become a child’s special guardian.

Form N142

Form N142 is used to apply for Guardianship Order.

Special guardianship: guide for family court users (CB4)

This is a guidance for anyone who is thinking of applying for a special guardianship order.

A special guardianship order is intended for those children who cannot live with their birth parents and who would benefit from a legally secure placement as per family court order. The Special Guardianship Order gives the special guardian parental responsibilities, and leaves the guardian free to make decisions about how to bring up your child or children. The special guardianship order does not change birth parent's legal relationship with the child, so they remain a member of birth parent's family even though they are living with their special guardian.

Close relatives of a child can apply to be their Special Guardian – and this might involve grandparents, an uncle or aunt, or a godparent or a close family friend applying to the court for a Special Guardianship Order.

The following people may apply to be special guardians:

• Any guardian of the child;
• Any individual who has a child arrangements order or any person where a child arrangements order is in force and who has the consent of the person in whose favour the child arrangements order is made;
• Anyone with whom the child has lived for at least three years out of the last five years;
• Anyone with the consent of the local authority if the child is in care;
• A local authority foster parent with whom the child has lived for at least one year preceding the application;
• Anyone who has the consent of those with parental responsibility;
• Anyone who has the leave of the court.

NOTE: You must be over 18 years of age and you can apply on your own or jointly with another person.

A parent of a child may not be appointed as the child's special guardian.

Local authorities are required to produce to the court a report on all children, not just those who are looked after, when an application is made. On receipt of notice of an application, or if the court makes a request, the local authority must investigate and prepare a report to the court about the suitability of the applicants to be special guardians.

The regulations say that the local authority report should include certain key information about the child such as:

• Whether the child has brothers and sisters and details of both parents.
• The relationship a child has with other family members and the arrangements for the child to see or keep in touch with different family members.
• Details of the child's relationship with his/her parents.
• The parent/s' and the child's wishes and feelings.
• The prospective Guardian's family composition and circumstances.
• Parenting capacity.
• Medical information on the child, prospective special guardian and the birth parent(s).
• An assessment of how a Special Guardianship Order would meet a child's long term interests as compared with other types of order.

This report must include information about the child, the child’s wishes, the child’s birth family, contact arrangements, the prospective special guardian and recommendations about whether or not an order should be made (See the schedule to the relevant regulations for further details). The local authority is expected to start work on this report, or arrange for someone else to do it, as soon as possible after receiving the notice. The court cannot make an order without having received a report. Local authorities are expected to ensure that the social worker who prepares the report is suitably qualified and experienced, but there are no restrictions on who can write the report as there are for adoption.

Each local authority must make arrangements for the provision of special guardianship support services which may include:

• Financial assistance (means tested);
• Assistance with the arrangements for contact between a child, his/her parents and any relatives that the local authority consider to be beneficial;
• This assistance can include cash to help with the cost of travel, entertainment, and mediation to help resolve difficulties on contact;
• Respite care;
• Counselling, advice, information and other support services;
• Services to enable children, parents and special guardians to discuss matters, this might include setting up a support group;
• Therapeutic services for the child.

The special guardians cannot make the following decisions on their own:

• Changing the child's surname;
• Granting the child permission to marry;
• Placing the child for adoption;
• Consenting to the child being sterilised;
• Granting parental responsibility to a father or step parent.

If a party with parental responsibility disagrees with an application for special guardianship they can make an application to the Court and apply for a Specific Issue Order or a Prohibited Steps Order. Although it is recommended that any disagreements are resolved through mediation, the Court will always make their decision based on what is considered to be best for the child, taking into account the report prepared by the Local Authority.

When considering whether to make a Special Guardianship Order, the family court’s primary consideration is the best interests of the child concerned.

The family court will also have regard to:

• the wishes and feeling of the child concerned (as far as they can be obtained and in light of the child’s age and level of understanding);
• the child’s physical, emotional and educational needs;
• the likely effect on the child of any change in his/her circumstances;
• the child’s age, sex, background, and any other characteristic which the court considers relevant;
• any harm which the child has suffered or is at risk of suffering;
• 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 the child’s needs;
• the range of powers available to the court under the Children Act in the proceedings in question.

Before making a special guardianship order, the court must also consider whether there are any existing orders, such as a child arrangements order and whether it is necessary to vary or discharge these, or make such an order in addition to a special guardianship order, such as a child arrangements to set out the arrangements for the child to spend time with their parents.

Although a Special Guardianship Order is usually in place until a child is 18, if there has been a significant change in circumstances the order can be changed in one of two ways:

• The terms of the order can be altered;
• The order can be removed completely and the child returned to their parents

Anyone wishing to end a Special Guardianship Order must apply to the court, where the evidence will then be examined to determine if the change in circumstances is significant enough to vary  the original order. The court will also take into consideration the likely impact of their decision on the child and how disruptive another change in living arrangements would be for them.

In the situation where a child is considered to be at risk of harm if they remain in the family home, there are a few alternatives to a Special Guardianship Order which are as follows:

Foster Care

Unlike a Special Guardian, a foster carer does not have parental responsibility for a child and so is unable to make key decisions about the child’s care and upbringing. Even if the placement is long-term, foster care does not always afford the child the sense of security and belonging that can be gained through a Special Guardianship Order.

Child Arrangements Order

A Child Arrangements Order is a Court Order that sets out details of who is responsible for the care of a child. This type of Court Order is usually used in cases where the parents cannot agree between them how to split the care of their child/children.

A ‘child arrangements order’ decides:

• where your child lives;
• when your child spends time with each parent;
• when and what other types of contact take place (phone calls, for example).

‘Child arrangements orders’ replace ‘residence orders’ and ‘contact orders’. Parents with these orders do not need to re-apply.

Adoption

Adoption severs all connection between the child and their birth parents, placing them permanently with another family. Birth parents lose all parental responsibility once the court order has been issued and links with the wider biological family are also lost in the majority of cases.

A Special Guardianship Order gives the special guardian legal parental responsibility for the child which is expected to last until the child is 18. But, unlike Adoption Orders, these orders do not remove parental responsibility from the child’s birth parents, although their ability to exercise it is extremely limited.

In practice, this means that the child is no longer the responsibility of the local authority, and the special guardian will have more clear responsibility for all day-to day decisions about caring for the child or young person, and for taking important decisions about their upbringing, for example their education. And, importantly, although birth parents retain their legal parental responsibility, the special guardian only has to consult with them about these decisions in exceptional circumstances.

A Special Guardianship Order usually lasts until your child is 18 years old. However, if circumstances change significantly the Family Court can vary or even discharge the Order.