| 1.1 |
This procedure was agreed in and has been fully operational since December 2007. |
| 1.2 |
Special Guardianship was introduced in December 2005 as a result of amendments to Section 14 of the Children Act 1989 within the Adoption and Children Act 2002. |
| 1.3 |
The legal status of Special Guardianship fits broadly between a Residence Order and an Adoption Order in terms of the carer taking responsibility for the child. |
| 1.4 |
Special guardianship offers greater security than long-term fostering but does not require the absolute legal severance from the birth family that stems from an Adoption Order. Research has indicated that there is a significant group of older children who do not wish to make the absolute legal break with their birth family that is associated with adoption. |
| 1.5 |
A Special Guardianship Order gives the special guardian Parental Responsibility for the child. Unlike adoption, under a Special Guardianship Order the birth parents remain the child's legal parents and retain Parental Responsibility, although their ability to exercise this is extremely limited. The intention is that the special guardian will have clear responsibility for all the day-to-day decisions about caring for the child and for taking any other decisions about their upbringing, e.g. their education. |
| 1.6 |
A special guardian may exercise Parental Responsibility to the exclusion of others with Parental Responsibility, and without needing to consult them in all but a few exceptions which are:
- The child's change of name
- The child's removal from the UK for more than 3 months
- The sterilisation of the child
|
| 1.7 |
In addition the parents retain the right to consent or withhold consent to the child's adoption. |
| 1.8 |
Prospective carers from minority ethnic groups may also wish to offer a child a permanent family but have religious and cultural difficulties with adoption as it is set out in law. |
| 1.9 |
Unaccompanied asylum-seeking children also need secure, permanent homes, but have strong attachments to their families abroad. Special guardianship may assist children in these circumstances. |
| 1.10 |
One major purpose of special guardianship is to meet the child's need for a legally secure relationship with their carer. To this end, where a Special Guardianship Order is made, any Care Order is automatically discharged and the child is no longer Looked After. |
| 1.11 |
The converse is not true, however, as where a Care Order is made in relation to a child subject to a Special Guardianship order, the Special Guardianship Order is not automatically discharged (unlike a Residence Order) although the special guardian's exercise of Parental Responsibility will be limited to the extent determined by the local authority. |
| 2.1 |
Any approach of the Children's Social Care Service from eligible carers that they may wish to apply for a Special Guardianship Order must be viewed in the light of the Welfare Checklist. The child's welfare shall be the paramount consideration. The views and wishes of the child, the views, wishes of the carers and their suitability, including whether they fully understand their roles as Special Guardians must always be fully considered. Every effort must be made to fully involve the prospective applicants and the child in the process. Where a child will cease to be Looked After as a result of the order being made, it must be clear that the applicants fully understand how they will take responsibility for the child's upbringing without the involvement of the Local Authority. |
| 2.2 |
An application for a Special Guardianship Order is a permanency option for the child. All decisions to support in principle the application to Court for a Special Guardianship Order in relation to a Looked After child, or any child not Looked After, but for whom a maintenance allowance will be sought from the Council, must be endorsed by the Fostering Panel. |
| 2.3 |
Following the Adoption Panel's recommendation the final decision to support an application for special guardianship rests with the Agency Decision Maker, which in Croydon is the Head of CYPL. The decision is always given to the applicants in writing.
NB. For further details of the application and assessment procedure see Section 4, Legal Provision - Consequences for Birth Parents. |
| 3.1 |
The Special Guardian will have clear responsibility for all the day-to-day decisions about caring for the child and his or her upbringing. In all cases where a Special Guardianship Order is made, the applicant acquires Parental Responsibility. |
| 3.2 |
Any child previously Looked After will cease to be Looked After on the making of this order. A Special Guardian may exercise Parental Responsibility to the exclusion of all others with Parental Responsibility, apart from another Special Guardian. A Special Guardian can also appoint a guardian in the event of their death. |
| 3.3 |
There are some limitations to the exercise of Parental Responsibility by Special Guardians. Special Guardians cannot agree to the following without the agreement of other people with Parental Responsibility or the leave of the Court:
- The child's change of name
- The child's removal from the UK for more than 3 months
- The sterilisation of the child
|
| 3.4 |
In addition, birth parents retain the right to consent or withhold consent to their child's adoption. |
| 3.5 |
The holder of a Residence Order exercises Parental Responsibility jointly with other people who have Parental Responsibility (e.g. the birth parents). With a Residence Order, the holder of the Order acquires Parental Responsibility and this lasts as long as the Residence Order is in force. The Residence Order is automatically discharged, however, on the making of a Care Order. This is different from Special Guardianship Orders, which are not automatically discharged on the making of a Care Order. |
| 3.6 |
Where an Adoption Order is made, Parental Responsibility is given exclusively to the adopters. The child is treated in law as if he or she had been born to the adopters and the adopters become responsible for maintaining the child. |
| 4.1 |
Under a Special Guardianship Order, the child's birth parents retain Parental Responsibility - which they share with the Special Guardian. Their exercise of this will be very limited, however, because the Special Guardian can exercise Parental Responsibility to the exclusion of the parents on day to day issues concerning the upbringing of the child. The Special Guardians would have to seek the agreement of the parents if they wished to change the child's surname, or to arrange for the child to live abroad for more than three months or apply for the child's sterilisation. They also have the option of applying to the Court for leave to any or all of the exceptions, if the parents do not consent. The parents also retain the right to consent or not to adoption and may apply for contact with the child through the Courts, or for a variation of the Special Guardianship Order. |
| 4.2 |
Where a Residence Order is made, the child's birth parents retain Parental Responsibility - which they share more equally with the holder of the Residence Order than they would do with Special Guardians (see 4.1), other than in relation to the decision as to where the child should live. The child's birth parents can also apply for contact with the child through the Courts, or a variation of the residence order. |
| 4.3 |
Under an Adoption Order, the child's birth parents lose Parental Responsibility. The adoptive parents are treated in law as if the child had been born to them. |
Eligibility
|
| 7.1 |
Before the Local Authority takes any steps to support an application for Special Guardianship, they must first ensure that the person(s) wishing to become Special Guardian(s) are eligible. The child's parents are not eligible to apply for a Special Guardianship order. A court may make a Special Guardianship Order in respect of a child on the application of the following persons:
- 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 Residence Order with respect to the child, or who has the consent of all those in whose favour a Residence Order is in force;
- Anyone with whom the child has lived for three out of the last five years;
- 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.
|
Provisions Relating to Family Proceedings |
| 7.2 |
It is important to note that the Court may make a Special Guardianship Order in any family proceedings concerning the welfare of the child, if they consider an order should be made. This applies even when no application has been made and includes adoption proceedings. In all circumstances the Local Authority will need to provide a report for the court. The court and Local Authority must consider the whole range of options available.
|
Timescale |
| 7.3 |
An applicant must give three months notice to the Local Authority of their intention to apply for a Special Guardianship Order. |
| 7.4 |
The only exception to the three months notice period is where someone has already applied for an Adoption Order. The Court may then give leave for someone else to apply for an order for Special Guardianship, although this will only occur in very exceptional circumstances. In these cases the 3 month notice period is disregarded to stop the competing Special Guardianship Order delaying the Adoption Order. The Court will then consider both at the same time and decide what is the best option for the child. |
| 8.1 |
In that 3 months period the Local Authority must prepare and submit a report. |
| 8.2 |
Before making the Special Guardianship Order, the court must consider whether to vary or discharge any other existing order made under Section 8 of the Children Act 1989. A Section 8 contact order can be made at the same time as a Special Guardianship Order. |
| 8.3 |
For both Looked After and other children, there must be a report by the Local Authority for the Court. The report covers all the necessary information about the child, the child's family, the wishes and feelings of the child, the prospective special guardian, information about the Local Authority that completed the report and recommendations about whether an order should be made and contact arrangements - see Court Reports in Adoption / Special Guardianship Procedure. |
| 8.4 |
In order to ensure that the service complies with the standards of good practice set out in the statutory guidance, the Social Worker who prepares the report to the Court should be suitably qualified and experienced. However, where this cannot be achieved, Social Workers who do not have suitable experience will be supervised by someone who has. |
| 9.1 |
Special Guardianship Orders can be varied or discharged on the application of the following persons, who do not require the leave of the court to make an application:
- 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 Residence Order in respect of the child before the Special
Guardianship Order was made;
|
| 9.2 |
The following persons do require the leave of the court to make application for the variation of a Special Guardianship Order;
- 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).
|
| 9.3 |
Where the applicant is not the child and the leave of the court is required, the court may only grant leave if there has been a significant change in circumstances since the Special Guardianship Order was made. |
| 9.4 |
In the case of a child applying, the Court may only grant leave if it is satisfied that the child has sufficient understanding to make the proposed application. |
| 9.5 |
In any family proceedings in which a question arises about the welfare of a child who is subject to a Special Guardianship Order, the Court may vary, discharge the order in the absence of an application. |
| 10.1 |
Decisions regarding the recommendation for Special Guardianship as a permanency option for the child must be viewed in the light of the Welfare Checklist. |
| 10.2 |
It is expected that the option of Special Guardianship will be discussed at all Looked After Reviews. Any decision about recommending special guardianship must be discussed fully with the Team Manager supervising the social worker who reports to the court. |
| 10.3 |
In determining whether a Special Guardianship Order is in the child's interest, the following issues must always be considered:
- The views and wishes of the child, whether they fully understand the nature of a Special Guardianship Order and why this may be the preferred permanency option for them;
- The views and wishes of the parents
- The views and wishes of the carers and, if they are the proposed Special Guardians, their suitability, including whether they fully understand their roles as Special Guardians;
- The suitability of plans for future contact between the child and their birth parents. It should be noted that in reporting to the court the Local Authority is required to recommend appropriate contact arrangements in all cases;
|
Looked After Children: Permanency Planning |
| 10.4 |
The Department's approach to any notification of intention to apply for a Special Guardianship Order for any Looked After child will be determined by a Permanency Planning Meeting, see Permanent Placement Policy for Children and Young People Procedure. |
| 10.5 |
Every effort must be made to involve the prospective applicants and the child in the meeting and the planning process and to consider fully with them the reasons for making an application, and whether it is advisable to do so. The prospective applicants must be advised of the role of the Local Authority in reporting and making recommendations to the court, including their duty to consider and report on what other options the court may wish to consider. |
| 10.6 |
An application for a Special Guardianship Order is a permanency option for the child and must be evaluated with the same thoroughness as any other permanency plan. The Social Worker completing the report for the court will normally be the social worker for the child concerned. The Permanency Planning Meeting will include discussion of the following points:
- Background history;
- Legal context;
- Outcome of the Core Assessment and any other assessments;
- The overarching plan as agreed by the last Looked After Review;
- Developments since the last Looked After Review;
- Outcome of any Family Group Conference;
- The child's needs;
- The child's wishes and feelings;
- The wishes and feelings of the child's carers;
- The parent's wishes and feelings;
- The wishes and feelings of significant others;
- The views of the child's social worker and their supervisor.
|
| 10.7 |
All decisions to support in principle the application to court for a Special Guardianship Order in relation to a Looked After child must be endorsed by the relevant Panel. |
| 10.8 |
Where the application is from the carers of a Looked After child, the Panel must receive an updated Child's Permanence Report and an updated BAAF Form F (parts 1 and 2), including up to date references (2 independent referees plus 1 family member for each applicant), together with the child's Care Plan, full medicals for the prospective special guardian and the child, and a linking report explaining why the application is supported, based on the matching criteria |
| 11.1 |
Where the child is not Looked After, the Local Authority has the same responsibility for reporting to the court and carefully assessing the recommendations, as for a Looked After child. Every effort must be made to consider fully with the prospective applicants and the child the reasons for making an application, whether it is advisable to do so, and what the other options might be. The prospective applicants must be advised of the role of the Local Authority in reporting and making recommendations to the court, including their duty to consider and report on what other options the court may wish to consider. |
| 11.2 |
The allocation of the case will need to take into account the circumstances of the case, whether there is a social worker already involved and the expectation of the statutory guidance that the social worker should be suitably qualified and experienced. Where this cannot be achieved, social workers who do not have suitable experience will be supervised by someone who has.
|
Panel |
| 11.3 |
All decisions to support in principle the application to court for a Special Guardianship Order in relation to any child not Looked After but for whom financial support will be sought from the local authority, must be endorsed by the relevant Panel. |
| 11.4 |
A full assessment of the prospective guardians and the child must also be completed. The Panel must receive an updated Child's Permanence Report and an updated BAAF F (parts 1 and 2), including up to date references (two independent referees plus one family member for each applicant) and presented to the Panel together with a Care Plan for the child, full medicals for the prospective guardian and the child, and a linking report which explains why the application is supported, based on the matching criteria. |
| 14.1 |
The purpose of Special Guardianship support services is to ensure the continuance of the relationship between the child and his Special Guardian or the prospective Special Guardian. |
| 14.2 |
The child's parents are likely to remain involved where a Special Guardianship Order has been made, so it will be important to assess the likely impact of the Special Guardianship Order on the relationship between the parent, the child and the Special Guardian. This may well be more of an issue in the case of Special Guardianship than in adoption cases, because it is more likely that the child will have a continuing relationship with their parent(s). |
| 14.3 |
It is important to emphasise that Special Guardianship support services should not be seen in isolation from mainstream services. Croydon will aim to ensure that the provision of support services is agreed and planned jointly between the agencies concerned.
|
Assessment and Planning |
| 14.4 |
The policy and procedure for the assessment, planning, provision and review of Special Guardianship support services is almost identical to the policy for Adoption Support Services, with the exception of additional Leaving Care provision.
|
Leaving Care Support |
| 14.5 |
A child who was Looked After immediately before the making of a Special Guardianship Order will be a Qualifying Young Person for the purposes of Leaving Care support, i.e. he or she may receive assistance between the ages of 16 and 21. This needs to be taken into account when an application for Special Guardianship is being considered.
|
Financial Support |
| 14.6 |
The regulations state that financial support should be provided where this is necessary to ensure that the arrangements for a Special Guardianship Order can be secured. Financial support should not be the sole reason for a Special Guardianship arrangement failing to survive. This applies to both looked and non-looked after children. |
| 14.7 |
Eligibility for the payment of regular allowances to Special Guardians is normally determined by using the same financial assessment procedure and payment scale as applies for Residence Order Allowances. The provision of an allowance agreed before the Special Guardianship Order remains the responsibility of the Local Authority who originally agreed it, regardless of where the family lives. The requirement for carers to complete and supply the Local Authority with an annual statement as to their financial circumstances, the financial needs and resources of the child, their address and whether the child still has a home with him will apply in all cases. |
| 14.8 |
In exceptional cases payments may be made where the child needs special care as a result of long term and serious illness, disability, or severe emotional and behavioural difficulties. It must be demonstrated that the actual costs of providing the special care are above those applicable to a child who does not suffer from the condition. Examples are the need for special diets, clothing or bedding. Eligibility for such payments must be assessed in relation to any entitlement to benefits, such as Disabled Living Allowance. Any payment agreed may be paid as an enhancement to a regular allowance. |
| 14.9 |
Assistance may also be provided with legal costs, both at the time of the application and subsequently. Assistance may be given where this is deemed necessary for the order to be made or to continue, where the application or the continuation of the order is assessed by the Local Authority as being in the child's best interest. Cases will be assessed individually. Agreement for payment must be supported by the Head of Service. |
| 14.10 |
Assistance may also be provided with travelling expenses to facilitate contact between the child and their relatives or others with whom the child is considered by the Local Authority to have a beneficial relationship. Cases will be assessed individually. Agreement for payment must be supported by the Head of Service.
|
Looked After Children |
| 14.11 |
For Looked After children, as for adoption support services, the Local Authority that last looked after them retains responsibility for the assessment and provision of special guardianship support services for three years from the date of the making of the order. It also retains responsibility indefinitely for regular financial support agreed before the making of the Special Guardianship Order. In all other situations, including where the initial three years period has expired, responsibility for assessing and providing support services is with the Local Authority where the special guardian lives. |
| 14.12 |
As with adoption support services, a foster carer who becomes the Special Guardian for a child they were formerly fostering can receive an element of remuneration for up to two years after making the order, and for a longer period in exceptional circumstances. Financial issues should not be the sole reason for a Special Guardianship arrangement failing to survive. This enables the Authority to maintain payments to Foster Carers who become Special Guardians at the same rate as they received when they were fostering the child. Where it is proposed that remuneration will continue, agreement for payment must be supported by the Head of Service. |
