S.G.O. Special guardianship orders.

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Special guardianship orders

A special guardianship order is an order appointing one or more individuals to be a child's 'special guardian'. It is a private law order made under the Children Act 1989 and is intended for those children who cannot live with their birth parents and who would benefit from a legally secure placement.

It is a more secure order than a residence order because a parent cannot apply to discharge it unless they have the permission of the court to do so, however it is less secure than an adoption order because it does not end the legal relationship between the child and his/her birth parents. The Adoption and Children Act 2002 introduced Special Guardianship and Special Guardianship Orders. 

Who can apply for Special guardianship orders?

You must be over 18 years of age and you cannot be the parent of the child in question. You can make an application on your own or jointly with another person. The following people may apply to be special guardians

  • Any guardian of the child.

  • You have a Child Arrangements Order or a Residence Order for the child.

  • 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.

  • You are a relative of the child and the child has resided with you for at least one year immediately pre-dating an application for a Special Guardianship Order

  • Anyone who has the consent of those with the parental responsibility.

  • Anyone who has permission of the Court to make the application.

Who cannot apply?

A parent of a child may not be appointed as the child's special guardian. The court must decide that a special guardianship order is the most appropriate order to make in the best interests of the child. The court must consider whether, in addition to the making of a special guardianship order, a contact order should be made and whether any existing Section 8 Orders should be varied or discharged. The court must have the benefit of the local authority report dealing with the suitability of the applicant and any other matters that the local authority consider relevant before it can make an order (Children Act 1989, section 14A(8), (9).

What is the effect of a special guardianship order?

This order discharges any existing care order or related section 34 Contact Order. It confers parental responsibility, which can be exercised to the exclusion of any other person with parental responsibility apart from another special guardian. The special guardian has responsibility for day to day decisions relating to a child's care and upbringing. This order allows a special guardian to remove a child from the UK for up to three months without consent of others with Parental Responsibility or the leave of the court.

The court can give permission for the child to be taken out of the jurisdiction for longer than three months. On making a special guardianship order the court may give leave for the child to be known by a new surname.

In addition, it gives the child security and a long term placement. It may also help to give the young person links to their birth parents too if deemed appropriate.

The role of the local authority

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 of the Guardian.

  • 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.

  • A recommendation regarding contact and Special Guardianship.

  • Implications of the making of the Special Guardianship Order for all those involved.

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.

What happens after an assessment?

 This assessment determines whether a person has a need for special support services and whether the Local Authority can offer this service. The person should be given notice and information of the support offered and if appropriate the financial support too. It is important to seek legal advice before any provision is agreed so you are fully represented.

An eligible Applicant can make a freestanding application to the court for a Special Guardianship Order. In doing so they must give 3 months' written notice to their Local Authority of their intention to apply. In relation to a Looked After Child, the notice will go to the Local Authority looking after the child. In all other cases, the notice will be sent to the Local Authority for the area where the Applicant resides. The Local Authority receiving the notice will then have a duty to provide a report to the Court. The only exception to the requirement for 3 months' notice is where the Court has granted leave to make an application and waived the notice period.

A Local Authority may choose to apply to the court within Public Law Proceedings (as part of its final care plan) or after a Care Order has been granted, where the Local Authority determines that Special Guardianship is the most suitable permanency plan for a child. The Local Authority may encourage and support an application from an eligible applicant for a child known to the Local Authority but for whom they do not share Parental Responsibility, where the Local Authority determines that the Special Guardianship Order would be the most suitable plan for the child as an alternative to care proceedings.

The Court may make a Special Guardianship Order in any family proceedings concerning the welfare of the child. This applies even where no application has been made and includes adoption proceedings. 5. Responsibility for Making the Application 5.1 Freestanding applications e.g. for children not previously known to the Local Authority or for applications not supported by the Local Authority, should be made by the applicants legal representation. The prospective Special Guardians will need to instruct their own solicitor to draft the application and represent them in the court proceedings. 5.2 Applications agreed by the Local Authority for children not currently Looked After by the Local Authority should be made by the Applicants legal representation. The prospective Special Guardians will need to instruct their own solicitor to draft the application and represent them in the court proceedings. 5.3 Applications for children subject to a Care Order or Interim Care Order should be made by the Children’s Services legal department. The legal department will then draft and submit the application upon receipt of the reports, statements and plans completed by the social workers.

Responsibility and Process for Completing the Assessment 6.1 Applications for any Child not previously known to the Local Authority: Upon receipt of the ‘Notice of Intention’ from the applicant or the court the Local Authority will allocate a social worker from the Family Placement Team (FPT). The allocated Social Worker (SW), from the Family Placement Team, will contact the applicants to discuss the assessment process, provide them with the relevant guidance and discuss available support within 2 weeks of the receipt of the notification.

The allocated SW, from the FPT, will progress the assessment, by meeting with and gathering information from the applicants, the children, the birth parents and any other relevant adults or children and completing all necessary checks. The allocated SW will complete the SGO/Connected Person Assessment Report and identify the required package of support and record this in the Support Plan (See Support Offer) within 12 weeks of receipt of the notification. Once approved a copy of the report and plan should be provided to the applicants, who may wish to further consult their independent legal advice regarding the assessment and support offered.

The FPT Social Worker will be the principal author of the report, but may ask other professionals to contribute. The assessing Social Worker should be prepared to attend court as required in respect of the application. 6.2 Freestanding application from a Foster Carer: Where the child is Looked After but the Local Authority has not identified Special Guardianship as the plan for the child, the carer will need to make a freestanding application for an SGO. Again, the carers should be advised to obtain their own independent legal advice in relation to their legal options.

The prospective Special Guardian should then write to the Fostering and Adoption Service Manager for the Adoption and Special Guardianship team and should include the following information:- their name and address, the name and date of birth of the child, the child’s social worker’s name and office details, their Supervising social worker’s name. The letter should also include a statement to notify the department of their intention to apply for a SGO.

The applicant must give written permission for statutory checks to be undertaken and should sign and date the letter. The “Notification” will be formally acknowledged by the Service Manager for the Adoption and Fostering team and forwarded to the Child’s Social Worker and the Foster Carers’ Supervising Social Worker within 2 weeks of receipt of the notification. The Child’s Social Worker should then (within two weeks) request a Care Planning Meeting with the Strategic Lead and Children’s Services Legal Department to determine whether the Local Authority is in agreement with the proposed SGO.

A member of the Family Placement Team should be invited to the meeting and the IRO should also be consulted for their views, prior to the meeting taking place. If the LA is in agreement with the application a Social Worker, from the Family Placement Team, will be allocated, to lead the completion of the assessment and support plan, in conjunction with the Child’s current Social Worker and the Foster Carers Supervising Social Worker. Once approved a copy of the report and plan should be provided to the applicants, who may wish to further consult their independent legal advice regarding the assessment and support offered.

The prospective Special Guardians will need to instruct their own solicitor to draft the application and represent them in the court proceedings. If the LA opposes the application legal advice should be sought as to what action the Local Authority could take. The FPT Social Worker will be the principle author of the report. However the Child’s SW and the Carers Supervising SW (if applicable) are also expected to contribute. The child’s SW should also make their own recommendation as to the outcome of the assessment, as required. All Social Workers should be prepared to attend court as required in respect of the application. 6.3 Applications for Children and Families known to the Local Authority: 6.3.1 Applications within Public Law Proceedings or Pre-Proceedings (PLO): The decision to pursue an application for a SGO will be agreed with the applicants and the LA through the pre-proceedings (PLO) process or following a Legal Planning Meeting, if there has been no period of PLO.

A member of the Family Placement Team should be invited to the initial Legal Planning meeting to discuss and agree any carer assessment needs. Once a potential Special Guardian/Connected Person has been identified the allocated children’s Social Worker should complete a ‘Viability Request’ form for each carer application (joint or individual) via LCS to notify the Family Placement Team, within 5 working days. The Family Placement Team Duty Worker will complete a screening call within 24hrs (or as soon as possible if weekend/public holiday) and notify the Child’s SW of the outcome. The Child’s SW will then arrange a home visit, within 7 working days of the positive screening, with a FPT Duty worker to progress the Viability Assessment. The Child’s SW and FPT Duty Worker will complete the viability Assessment Form and agree the most appropriate outcome within 5 working days of the visit.

The viability assessment will consider whether it is viable to proceed with an SGO assessment. If this is not appropriate, the assessment will consider if a Connected Person assessment is more suitable. Upon the completion of a positive Viability Assessment a Supervising Social Worker from the Family Placement Team will be allocated, within 2 working days, to progress the assessment. The allocated Social Worker from the Family Placement Team will lead the Assessment and in collaboration with the allocated Child’s Social Worker complete the SGO/Connected Person Assessment and Support Plan, within 12 weeks. The Assessment Report should be approved by a Service Manager or a Team Leader in their absence.

The Support Plan should be approved by the Agency Decision Maker, but may be delegated to a Strategic Lead in their absence. KB: V3 April 2018 7 Once approved a copy of the report and plan should be provided to the applicants, who may wish to seek independent legal advice regarding the application and support offered. The final agreed Assessment Report and Support Plan should be submitted 2 days before the Final Care Planning Meeting to the Strategic Lead. A copy of the approved and agreed Assessment Report and Support Plan must also be sent to the legal department to accompany the Final Evidence and or to enable them to prepare an SGO application (if required).

The FPT Social Worker will be the principle author of the report. However the Child’s SW and the Carer’s Supervising SW (if applicable) are also expected to contribute. The child’s SW should also make their own recommendation as to the outcome of the assessment, as required. All Social Workers should be prepared to attend court as required in respect of the application. 6.3.2 Applications for a child subject to a Care Order with the agreement of the Local Authority: An application for a Special Guardianship Order is a permanence option for the child and must be evaluated with the same thoroughness as any other permanence plan. The legal status of a child in care should be considered at every statutory review and for children in long term care, special guardianship should be considered as an option.

Any decision to apply for a Special Guardianship Order should clearly be based on meeting the needs of the individual child. Every effort must be made to involve the prospective applicants, birth parents and the child in the planning process and to fully consider 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 other options the court may wish to consider. Where the review makes the recommendation that a Special Guardianship Order should be considered the Child’s Social Worker should make a referral to the Children’s Services Legal Department and request a Legal Planning Meeting to discuss and agree the decision with the Strategic Lead, within two weeks of the Review Meeting or other decision making forum. A member of the Family Placement Team should be invited to the initial Legal Planning meeting to discuss and agree any carer assessment needs.

The meeting should consider the: background history the child’s needs, wishes and feelings legal context outcome of any previous assessments and current relevance the overarching plan as agreed at the last Statutory Looked After Review outcome of any family group conference wishes and feelings of the child’s carers, parents and significant others views of the department. It is recommended that an application for the discharge of the Care Order is made, asking the Court as part of the application to replace the Care Order with a Special Guardianship Order. KB: V3 April 2018 8 The carer should be advised to seek independent legal advice in relation to their legal options.

They need to consider the advantages and disadvantages of applying for an SGO compared to remaining a Foster Carer/Connected Person Foster Carer or whether applying for a Child Arrangements Order or Adoption Order is more appropriate. If the Foster Carer/Connected Person Foster Carer agrees to proceed with an SGO, the SGO/Connected Person Assessment and Support Plan will be completed by a Social Worker from the Family Placement Team, in collaboration with the allocated Child’s Social Worker and the Supervising Social Worker for the Carer (if this is not the assessing social worker), within 12 weeks of the Initial Legal Planning Meeting The allocated Children’s SW must also complete a Statement of Evidence in respect of the discharge of the Care Order, within the same 12 week period.

Once the Assessment Report and proposed Support Plan are completed a further Legal Planning Meeting should be held to ratify the decision and the Support Plan should be sent to the Agency Decision Maker for further ratification. Once authorised a copy of the Assessment Report, Support Plan and the Statement of Evidence should be sent to the applicants. The applicants can choose to seek further legal advice regarding the Assessment Report and or Support plan, if required. A copy of the authorised Assessment Report and Support Plan along with the Statement of Evidence should be sent to the Legal Department who will progress the application. The FPT Social Worker will be the principle author of the report. However the Child’s SW and the Carer’s Supervising SW (if applicable) are also expected to contribute. The child’s SW should also make their own recommendation as to the outcome of the assessment, as required. All Social Workers should be prepared to attend court as required in respect of the application.

Can a special guardian stop contact?

Can a special guardian stop contact? While it is important for special guardians to encourage contact they cannot force the child to attend. ... The court's main concern will be the child's welfare andcontact will only be changed if it is in the child's best interests. If applications happen repeatedly and unreasonably the court can stop them.

What about financial support?

It may be possible to make an application to your Local Authority for a Special Guardianship Allowance. Local Authorities will then have to work out how much fostering allowance would have been paid had the child been fostered rather than cared for under a Special Guardianship Order. This is means tested and you can find out more information in the Special Guardianship Regulations 2005 (Updated 2016).

This article was kindly written by Grandparents Plus. they champion the vital role of grandparents and the wider family in children’s lives, especially when they take on the caring role in difficult family circumstances. 

When can a special guardianship order be discharged?

A special guardianship usually lasts until your child is 18. However, if circumstances change significantly the Court can vary or even discharge the Order. Varying an Order means changing the terms of the Order and dischargingmeans to get rid of the Order completely and returning the child back to their parent/s.

How to discharge an SGO

Applying to discharge or vary a Special Guardianship Order

The law is as set out at section 14 D of the Children Act 1989, which is set out at the end of this post.  We can see from this that a parent can apply to vary or discharge an SGO but needs the court’s permission first.

‘Vary’ means you want to change the content of the order; ‘discharge’ means you want the order to come to an end. There is probably little point in applying to discharge or vary an order until at least six months have passed since it was first made – if you think that the order should not have been made in the first place, you should consider applying to appeal – but you will have to do that within 3 weeks.

Special Guardianship Orders are meant to be a way of providing a child with a permanent home throughout his childhood so you will need good reasons to say that the order should no longer apply, once it has been made. There is no automatic legal aid for parents in such proceedings.

For more general information about SGOs, see this post. 

The courts have decided that this is a two stage test.

a. First the parent must show a change of circumstances.
b. Then the court will consider the child’s welfare and the parent’s prospects of success in challenging the SGO.

Step 1: What counts as a ‘significant change of circumstances’ ?

The courts are unlikely to place much weight on use of the word ‘significant’ when applied to the word ‘changes’. In G (A Child) [2010] EWCA Civ 300 Wilson LJ decided to proceed on the basis that there is no relevant difference between applying for permission to discharge a placement order [under section 24(3) of the Adoption and Children Act 2002] and applying for permission to discharge an SGO, even though section 14D refers to ‘significant’ changes and the Adoption and Children Act does not.

Various courts have agreed that the bar cannot be set too high so that no parents could ever get over it; parents should not be discouraged from trying to improve their circumstances. But the change in circumstances has got to be a relevant one.

In the case of Re B-S (Children) [2013] EWCA Civ 1146 the court described the test for ‘change of circumstances’ in this way, in the context of the Adoption and Children Act 2002:
a. … the court has to be satisfied on the facts of the case that there has been a change in circumstances ‘of a nature and degree sufficient, on the facts of the case, to open the door to the exercise of judicial evaluation’
b. the test should not be set too high, because parents should not be discouraged from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test that is unachievable;
c. whether or not there has been a relevant change in circumstance must be a matter of fact to be decided by the good sense and sound judgment of the tribunal hearing the application;
d. if there is no change in circumstances, that is the end of the matter, and the application fails.

In another case also called G (A Child) [2015] EWCA Civ 119 the Court of Appeal agreed that a change in the child’s circumstances could also be relevant.

Therefore, the parent will have to demonstrate some relevant changes which on the facts of the particular case in front of the judge, means it is appropriate for the Judge to consider moving on to Step 2 of the process. It is likely that if the concerns about your parenting in the care proceedings were very serious, you will need to show correspondingly serious changes.

For example, in Re G [2010] the mother’s child was living with the maternal grandmother under an SGO after the mother had been in a number of violent relationships. However, the grandmother agreed she would not oppose permission being given to the mother to apply to discharge the SGO, after hearing about the efforts the mother had made to attend counselling/therapy to help her make better relationship choices in the future. The mother was also caring successfully for her second child without any intervention from Children’s Services.

Step 2: What do the courts mean by considering issues about ‘welfare’ and ‘prospects of success’ ?

Having determined that the approach to ‘change’ should be the same for applications to discharge an SGO and to discharge a placement order, it made sense for Wilson JL to also decide in G (A Child) [2010] that courts should take the same approach after deciding that the circumstances had changed.

Wilson LJ confirmed that this means the approach in M v Warwickshire County Council [2007] should be followed, where he said at paragraph 29 of his judgment in that case:

In relation to an application for leave under s.24(3) of the Act I therefore hold that, on establishment of a change in circumstances, a discretion arises in which the welfare of the child and the prospect of success should both be weighed. My view is that the requisite analysis of the prospect of success will almost always include the requisite analysis of the welfare of the child. For, were there to be a real prospect that an applicant would persuade the court that a child’s welfare would best be served by revocation of the placement order, it would surely almost always serve the child’s welfare for the applicant to be given leave to seek to do so. Conversely, were there not to be any such real prospect, it is hard to conceive that it would serve the welfare of the child for the application for leave to be granted.

This means a change in circumstances is a necessary but not sufficient condition to get permission to make the application to discharge a SGO – it opens the door for the Judge to consider it and he or she will then examine the often overlapping issues of the child’s welfare/prospects of success of the application.

The child’s welfare is not however the paramount consideration for the court in this exercise. Also, the issue of  “a real prospect of success” relates to discharging/varying the order NOT necessarily the return of the child to the parent’s care. See Re G [2015].

At this stage, the courts will probably want to consider how long the changes you have made have been in place, and how likely they are to be sustained in the future.

 

Section 14 D Children Act 1989

Special guardianship orders: variation and discharge

(1)The court may vary or discharge a special guardianship order on the application of—
(a)the special guardian (or any of them, if there are more than one);
(b) any parent or guardian of the child concerned;
(c )any individual in whose favour a [Child arrangements order] is in force with respect to the child;
(d) any individual not falling within any of paragraphs (a) to (c) who has, or immediately before the making of the special guardianship order had, parental responsibility for the child;
(e) the child himself; or
(f) a local authority designated in a care order with respect to the child.
(2) In any family proceedings in which a question arises with respect to the welfare of a child with respect to whom a special guardianship order is in force, the court may also vary or discharge the special guardianship order if it considers that the order should be varied or discharged, even though no application has been made under subsection (1).
(3) The following must obtain the leave of the court before making an application under subsection (1)—
(a) the child;
(b) any parent or guardian of his;
(c) any step-parent of his who has acquired, and has not lost, parental responsibility for him by virtue of section 4A;
(d) any individual falling within subsection (1)(d) who immediately before the making of the special guardianship order had, but no longer has, parental responsibility for him.
(4) Where the person applying for leave to make an application under subsection (1) is the child, the court may only grant leave if it is satisfied that he has sufficient understanding to make the proposed application under subsection (1).
(5) The court may not grant leave to a person falling within subsection (3)(b)(c) or (d) unless it is satisfied that there has been a significant change in circumstances since the making of the special guardianship order.

Does a special guardianship order give parental responsibility?

A Special Guardian will get Parental Responsibility for the child until the child reaches the age of 18. Unlike adoption, a Special Guardianship Order will not remove Parental Responsibility from the child's birth parent(s).

Can a special guardianship order be revoked?

Special Guardianship Orders can be varied or discharged, by further application to the court. ... A birth parent can only apply for a Special Guardianship Order to be overturned where the court has granted permission for the application because the parent has been able to demonstrate a significant change in circumstances.