This chapter should be read in conjunction with Permanence Planning Guidance.
Section 5, Planning Meeting, was revised and updated in July 2017 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.
- Who may Apply?
- Parental Responsibility
- The Circumstances in which a Special Guardianship Order may be Made
- Planning Meeting
- Report to the Court
- Discharge of Special Guardianship Order
- Special Guardianship Support
- Entitlement to Assessment for Special Guardianship Support
- Assessment for Support
- The Special Guardianship Support Plan
- Review of Special Guardianship Support Plan
- Financial Support
- Urgent Cases
- Special Guardian Duty on the Death of the Child
Special Guardianship Orders have been available since 30 December 2005.
Special Guardianship offers an option for children needing permanent care outside their birth family. It can offer greater security without absolute severance from the birth family as in adoption.
It will address the needs of a significant group of children, mainly older, who need a sense of stability and security but who do not wish to make the absolute legal break with their birth family that is associated with adoption.
Special Guardianship Orders are likely to replace the use of Child Arrangements Orders in many cases in that they offer greater stability and security to a placement.
It will also provide an alternative for achieving permanence in families where adoption, for cultural or religious reasons, is not an option.
A Special Guardianship Order offers greater stability and legal security to a placement than a Child Arrangements Order.
Special Guardians will have Parental Responsibility for the child and, whilst this will be shared with the child's parents, however, their ability to exercise Parental Responsibility is subject to the ability of the special guardian to exercise Parental Responsibility to the exclusion of any other person.
A Special Guardianship Order made in relation to a Looked After Child will replace the Care Order and the Local Authority will no longer have Parental Responsibility.
A Care Order, however, will not automatically revoke a Special Guardianship Order although the Special Guardian's exercise of Parental Responsibility will be restricted as the local authority will have primary responsibility for decision-making under the Care Order.
For further details about the Special Guardianship as a permanence option for Looked After Children, see Permanence Planning Guidance.
2. Who may Apply?
Applications for Special Guardianship may be individual or joint. Joint applicants do not need to be married. Special Guardians must be 18 or over.
The following persons may apply without having to obtain the leave of the court:
- Any guardian of the child;
- Where the child is subject of a Care Order or an Interim Care Order, any person who has the consent of the Local Authority;
- A local authority foster carer who is a relative of the child or with whom the child has lived for one year immediately preceding the application (even if the Local Authority does not consent);
- Anyone who is named in a Child Arrangements Order as a person with whom the child is to live;
- Anyone who has the consent of each person named in a Child Arrangements Order as a person with whom the child is to live;
- 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;
- Anyone who has the consent of all those with Parental Responsibility for the child;
- Anyone, 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.
3. Parental Responsibility
The Special Guardian will have Parental Responsibility for the child and will have clear responsibility for the day-to-day decisions about caring for the child to the exclusion of anyone else who might have Parental Responsibility (apart from another Special Guardian).
The child's parents will continue to hold Parental Responsibility but their exercise of it will be limited. The parents will, however, retain the right to consent or not to the child's adoption or placement for adoption.
In addition there are certain steps in a child's life which require the consent of every-one with Parental Responsibility, for example:
- The change of name of the child;
- The removal of the child from the United Kingdom for longer than three months;
- The sterilisation of a child.
4. The Circumstances in which a Special Guardianship Order may be Made
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. The welfare of the child is the court's paramount consideration in all cases.
Any person making an application for a Special Guardianship Order 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.
Where Oxfordshire receives notice from an applicant or a request for a report from the Court, the notice/request should be immediately passed to the child’s allocated social worker. If the child is not previously known, the notice/request should be referred to the Family Placement/Fostering Team for the area where the child lives, and the Family Placement/Fostering Team manager will allocate a social worker to deal with the case. See Section 6, Report to the Court for the required qualifications and experience of the social worker preparing the Court Report.
The allocated social worker should send written information to the prospective Special Guardian and the parents of the child in question about the steps to be taken in preparing the report. This should include information about Special Guardianship support services and how to request an assessment of needs for support.
In cases where the child is not Looked After, the Special Guardianship applicant should be advised that he/she will be expected to pay for the medical examination necessary during their assessment and that of the child who is the subject of the application.
5. Planning Meeting
Once notice has been received that an application for Special Guardianship is to be made, the notice should be passed to the allocated social worker or, if the child is not previously known, arrangements must be made for the case to be allocated to a social worker.
The allocated social worker should arrange a planning meeting as soon as practicable after the notice is received. The planning meeting should clarify the steps to be taken, who will carry out the necessary assessments and who will contribute to the report for the Court. Court timescales will need to be clarified.
The social worker or social workers preparing the Court report should be suitably qualified and experienced. There are no specific requirements as to the level of qualification or experience required and it will be for the manager of the relevant social work team to ensure that the allocated worker is competent to write the report.
In all cases, there will need to be:
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 10, Assessment for Support) of the child, parents and the prospective special guardian.The assessment of the applicants should include their medical history, the references received and the Disclosure and Barring Service and other statutory checks undertaken for the assessment.
6. Report for the Court
The social worker or social workers preparing the Court report should be suitably qualified and experienced.
On receiving 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 applicant/s to be Special Guardians.
The information to be included in the report is as follows:
- Information about the child who is the subject of the application, including history, health, education and emotional needs, family relationships;
- Information about the child’s family, including background history, employment, education, health and mental health, family relationships;
- The wishes and feelings of the child and others;
- Information about the prospective Special Guardian, including the outcome of Disclosure and Barring Service and local authority checks to include background history, health, education, employment, parenting capability and experience, support systems in place and needed, relationship with child and family, any contingency care arrangements that may be necessary, finances;
- Information about the local authority which compiled the report and the actions of the local authority;
- A summary prepared by a medical professional;
- Implications of the making of a Special Guardianship Order for those involved;
- Relative merits of Special Guardianship and other orders;
- A recommendation regarding Special Guardianship;
- A recommendation regarding contact.
The social worker or social workers preparing the report should be suitably qualified and experienced. The Regulations do not specify the qualifications and experience required; however it usually means a social worker with 3 years’ post-qualifying experience in children and families work or supervised by a person with such experience. In Oxfordshire, the report about the Special Guardian will normally be prepared by an experienced social worker from the Family Placement/Fostering Teams.
See Court Reports in Adoption/Special Guardianship Guidance for what is required to be included in the report.
7. Discharge of Special Guardianship Order
A Special Guardianship Order can be varied or discharged on the application of:
- The Special Guardian;
- The local authority in whose name a Care Order was in force before the Special Guardianship Order was made;
- Anyone named in a Child Arrangements Order as a person with whom the child was to live 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).
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.
The court may during any family proceedings in which a question arises about the welfare of a child who is subject to a Special Guardianship Order, vary or discharge the Order in the absence of an application.
8. Special Guardianship Support
The local authority must make provision for a range of Special Guardianship support services.
Special Guardianship support services are defined as:
- Financial support (see Section 13, Financial Support);
- Services to enable children, Special Guardians and parents to discuss matters relating to special guardianship;
- Assistance including mediation in relation to contact between the child and their parents, relatives or significant others;
- Therapeutic services for the child;
- Assistance to ensure continuance of the relationship between the child and the Special Guardian, including training to meet any special needs of the child, respite care, and mediation;
- Counselling, advice and information.
The services described above may include cash assistance.
Support services should not be seen in isolation from mainstream services and it is important to ensure that families are assisted in accessing mainstream services and are aware of their entitlements to tax credits and social security benefits.
Where the child was previously Looked After, the local authority that looked after the child has responsibility for providing support for the first three years after the making of a Special Guardianship Order. Thereafter the local authority where the Special Guardian lives will be responsible for the provision of any support required.
If a child is not Looked After, the local authority where the Special Guardian lives has the responsibility for Special Guardianship support.
Ongoing financial support, which has been agreed before the Special Guardianship Order is made, remains the responsibility of the local authority that agreed it so long as the family meet the criteria for payments.
9. Entitlement to Assessment for Special Guardianship Support
Where the child is Looked After or was Looked After immediately prior to the making of the Special Guardianship Order, the following people MUST receive an assessment at their request:
- The child;
- The Special Guardian or prospective Special Guardian;
- A parent (but only in relation to their need for support with contact and/or discussion groups);
Where the child is not Looked After or was not Looked After immediately prior to the making of the Special Guardianship Order, the following people MAY be offered an assessment of their need for Special Guardianship support services:
- The child;
- The Special Guardian or prospective Special Guardian;
- A parent.
In all cases, whether the Special Guardianship child is looked after or not, the following people also MAY be offered an assessment of their need for Special Guardianship support services:
- A child of the Special Guardian
- Any person with a significant ongoing relationship with the child
If a local authority decides not to assess in cases where they have discretion as above, they must notify the decision in writing, including reasons for the decision, to the person making the request.
10. Assessment for Support
The assessment should be based on the Assessment Framework under Working Together and include the following:
- The developmental needs of the child;
- The parenting capacity of the Special Guardian or prospective Special Guardian to meet the child’s needs;
- Family and environmental factors that have shaped the life of the child and the capacity of the Special Guardian or prospective Special Guardian to respond to those experiences;
- Comment on how life with the Special Guardian might be for the child;
- Any previous assessment of the child or Special Guardian that is relevant;
- The needs of the Special Guardian or prospective Special Guardian and their family;
- The impact of the Special Guardianship Order on the relationship between the child, parent and Special Guardian.
Where the child concerned is Looked After, the child’s social worker and the social worker who carried out the assessment of the Special Guardian should carry out the assessment jointly before submitting their report to the Court.
Where a child is not Looked After, the social worker allocated to complete the Court Report will also complete the Special Guardianship Support Assessment, if required, and Plan, if required (see Section 11, The Special Guardianship Support Plan).
The Pro Forma for Special Guardianship Support must be used.
Any proposal for financial support must be presented to the Service Manager, Family Placements for management approval.
At the end of the assessment and once the necessary approval has been obtained, the social worker must inform the person requesting provision of its outcome, including:
- Information about the outcome of the assessment and the reasons for it;
- Where it relates to financial support, the basis on which this is determined;
- The services (if any) that the Local Authority proposes to provide to help meet the child’s needs;
- If financial support is to be paid, the amount and conditions attached.
11. The Special Guardianship Support Plan
Where an assessment identifies the need for ongoing support services, a Special Guardianship Support Plan must be completed.
Other agencies, such as education and health, may need to be consulted about the contents of the Plan.
The Plan should be written in such a way that everyone affected can understand and set out:
- The services to be provided;
- The objectives and criteria for success;
- Timescales for provision;
- Procedures for review;
- A named person to monitor the provision of services in accordance with the Plan.
12. Review of Special Guardianship Support Plans
Special Guardianship Support Plans must be reviewed taking into account the following:
- Any change of circumstances affecting the support;
- At whichever stage of implementation of the plan is considered most appropriate;
- In any event at least annually.
The reviews may be a paper exercise where there is no change or a minor change in circumstances. However, if there is a substantial change of circumstances, e.g. a serious change in the behaviour of the child, it would normally be necessary to conduct a new assessment of needs.
13. Financial Support
Special Guardians must be helped to access any benefits to which they are entitled; this will usually include child benefit and tax credits such as Child Tax Credit and Working Tax Credit.
The local authority must also take account of any other grant, benefit, allowance or resource available to the person in respect of his needs as a result of becoming a Special Guardian of a child. Financial support cannot duplicate any other payment available to the Special Guardian.
Financial support cannot normally include the payment of remuneration to the Special Guardian for the care of the child. Regulation 7 of the Special Guardianship Regulations 2005, however, provides an exception to this in relation to Special Guardians who are the child’s former foster carers. In these circumstances, where the Special Guardian or prospective Special Guardian received an element of remuneration in the financial support paid to them as the child’s foster carer, the local authority may continue to pay that element of remuneration for two years from the date of the Special Guardianship Order. These payments can continue for longer than two years if the local authority considers this appropriate.
The purpose of the two year transitional provision is to enable local authorities to maintain payments to foster carers who become special guardians at the same rate as they received when they were fostering the child. This should give the family time to adjust to their new circumstances.
Unless Regulation 7 applies as described above, the Special Guardian’s means will usually be considered when ongoing financial support is being considered.
Means may also be disregarded in relation to:
- The initial costs of accommodating a child who has been Looked After - set up grant;
- Recurring travel costs in contact arrangements;
- Any special case requiring greater expenditure due to illness, disability, emotional or behavioural difficulties or the consequences of the past abuse or neglect of a child previously looked after.
The only circumstance when the local authority MUST disregard means is when providing financial support in respect of legal costs, including fees payable to a court in respect of a child who is Looked After where the local authority supports the making of the Special Guardianship Order.
In all cases, the social worker should include in the proposed Support Plan to be sent to the Special Guardian the amount of financial support agreed and information in relation to the following:
- Whether financial support is be paid in regular instalments and if so, the frequency of payment;
- The amount of financial support;
- The period for which the financial support is to be paid;
- When payment will commence;
- Conditions for continuing payment and date by which conditions are to be met, i.e. returning Review Forms;
- Arrangements and procedure for review and termination.
A copy of the Support Plan should be sent to Finance.
In all cases where Special Guardians are in receipt of financial support, the social worker responsible for monitoring the Support Plan will write annually to them with a Financial Assessment Review Form to be completed, together with a request for information about any change in circumstances for the Special Guardian or the child.Where Special Guardians do not return the Assessment Review Forms within the required time scale, the social worker monitoring the support plan should send a reminder letter, giving 28 days notice of the suspension of payments if the information requested is not received.
15. Urgent Cases
Where a person has an urgent need of a service, the assessment process should not delay provision and arrangements can be made for support to be provided as a matter of urgency in appropriate cases. The approval of the Designated Manager (Special Guardianship Support) will still be required. The local authority will need to review the provision as soon as possible after the support has been provided in accordance with the procedures set out above.
16. Special Guardian Duty on the Death of the Child
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.