Special Guardianship Orders

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 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.

Children subject to a Special Guardianship Order are eligible as previously Looked After Children for additional support with their education (Sections 20(4) and 20A(4) of the Children and Young Persons Act 2008). For further information, please see the Hillingdon Virtual School Handbook.

Special Guardians will have Parental Responsibility for the child and, while this will be shared with the child’s parents, the Special Guardian will have the ability to exercise this responsibility without seeking permission from the parents.

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.

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 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 1 year immediately preceding the application (even if the Local Authority does not consent) [1];
• Anyone who is named in a Child Arrangements Order as 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 3 out of the last 5 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;
• Any other person (including the child and other than a parent) may apply for a Special Guardianship Order if they have obtained the leave of the court to make the application.

The parents of a child may not apply to become their own child's Special Guardians.

^{[1] A person who is, or was at any time within the last 6 months, a local authority foster parent of a child may not apply for leave to apply for an SGO unless (s)he has the consent of the local authority, or (s)he is a relative of the child or the child has lived with him for at least one year preceding the application.}

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 surname of the child;
• The removal of the child from the United Kingdom for longer than 3 months;
• The sterilisation of a child.

The Court may make a Special Guardianship Order in any family proceedings concerning the welfare of the child and following an assessment by the local authority. This applies even where no application has been made and includes adoption proceedings. 

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 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 the local authority has received notice from an applicant or a request for a report from the Court, it should send written information about the steps it proposes to take in preparing the report to the prospective Special Guardian and the parents of the child in question. This should include information about Special Guardianship support services and how to request an assessment of needs for support.

Once notice has been received that an application for Special Guardianship is to be made, it 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. Local arrangements will determine which social work team will be responsible for dealing with such applications.

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). Where the assessment identifies that the child requires services from an agency other than Children's Social Care, the social worker should consult with the relevant Integrated Care Board (ICB) or Local Education Authority.

An assessment of the prospective Special Guardian's parenting capacity including:

1. Their medical history; DBS checks, references and other statutory checks; any previous assessment undertaken in respect of the prospective special guardian; any likely impact the Special Guardianship Order may have on relationships between the child and the parent;
2. 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;
3. 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;
4. Their ability and suitability to bring up the child until the child reaches the age of eighteen;”
5. The proposed contact arrangements and the support needs (See Section 11, Assessment for Support) of the child, parents/those who have parental responsibility and the prospective special guardian.

A full list of the matters to be included in the report is set out in the Court Reports in Adoption/Special Guardianship Procedure.

The social worker or social workers preparing the Court report should be suitably qualified and experienced. All assessments/suitability reports must comply with the schedule set out in regulation 21 of the Special Guardianship Regulations 2005 (as amended 2016). See: Court Reports in Placement Order Applications and Adoption/Special Guardianship Guidance, Special Guardianship - Matters to be Dealt with in Report for the Court.

(Where local authorities commission assessments from independent social workers, it is essential that there is clarity about the standard of the assessment commissioned before it is filed).

A full list of the matters to be included in the report is set out in the Court Reports in Adoption/Special Guardianship Procedure.

Once completed, the Court Report should be submitted by the author(s) to the Designated Manager (Special Guardianship Support) for approval.

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; or
• 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.

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 14, Financial Support);
• Services to enable children, Special Guardians and parents to discuss matters relating to the 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.

Special Guardianship Support will be subject to the approval of the Designated Manager (Special Guardianship Support).

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 3 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.

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.

The assessment should be based on the Assessment Framework under Working Together to Safeguard Children and include the following:

• The developmental needs of the child;
• The child's educational needs;
• 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 r 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.

Special Guardianship Support will be subject to the approval of the Designated Manager (Special Guardianship Support). Local arrangements will determine whether any additional approval is required for the payment of financial support.

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.

Where an assessment identifies the need for ongoing support services, a Special Guardianship Support Plan must be completed. This Plan should be based upon the lived experience of the child and the lived experience of the prospective Special Guardian.

Other agencies, such as education and health, may need to be consulted about the contents of the Plan.

As a previously looked after child, the child subject to a Special Guardianship Order will be entitled to additional education support. This will be accessed through the designated teacher in the child's school. For further information, please see Hillingdon Virtual School Handbook.

From 1 September 2021, the School Admissions Code provides that children being raised by family and friends carers under a Special Guardianship Order or Child Arrangements Order, who struggle to get a school place during the year, will be supported in finding one.

The Plan should be written in such as way that everyone affected can understand and set out:

1. The services to be provided;
2. The objectives and criteria for success;
3. Timescales for provision;
4. Procedures for review;
5. A named person to monitor the provision of services in accordance with the Plan;
6. Contact Arrangements between the child and parent(s) which should include: Type of contact, frequency and duration, who is responsible for making the arrangements of contact; what practical arrangements need to be provided to facilitate contact and what professional support and assistance, if any, will be provided to the special guardian;
7. Any harm that the child may have suffered and the capacity of the prospective Special Guardian to enable the child’s developmental recovery from that harm.

Special Guardianship Support will be subject to the approval of the Designated Manager (Special Guardianship Support). Local arrangements will determine whether any additional approval is required for the payment of financial support.

Once the necessary approval has been obtained, the social worker must send the proposed plan to the person requesting support, and allow 28 days for that person to make representations about the proposed plan. The social worker should also give information to the person concerned about who to contact to obtain independent advice and advocacy. 

Where representations are received, they should be referred to the Designated Manager (Special Guardianship Support) to decide whether to amend or confirm the Plan. The allocated social worker must then write to the person concerned setting out the final Plan.

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.

Any change to the Special Guardianship Support Plan will be subject to the approval of the Designated Manager (Special Guardianship Support). Local arrangements will determine whether any additional approval is required for changes to financial support.

If the local authority decides to vary or terminate the provision of support after the review, notice in writing must be given and the person concerned should be given 28 days to make representations.

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.

The Special Guardian's means will usually be considered when ongoing financial support is being considered. They should therefore be asked to complete a Financial Assessment Form, which when completed should be passed to the Finance Officer responsible for carrying out means assessments.

Once the means assessment has been carried out, the Finance Officer should send written notification of the outcome to the relevant social worker, who must present this to the Designated Manager (Special Guardianship Support) for approval. 

The social worker should then write to the Special Guardian setting out the amount of financial support agreed by the Designated Manager (Special Guardianship Support) 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 this letter should be sent to the Finance Officer.

Means may be disregarded in relation to:

• The initial costs of accommodating a child who has been Looked After;
• 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.

Where the Special Guardians were previously the child's foster-carers - the local authority can maintain the fostering allowance for a transitional period of 2 years but with discretion to extend if necessary.

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 the authority support the making of the Special Guardianship Order.

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.

The Assessment Form should be forwarded to the Finance Officer for consideration. If any change in financial support is considered appropriate, the recommended change should be forwarded to the Designated Manager (Special Guardianship Support) for a decision. Where a change is approved, the Special Guardian should be notified in writing of the change, together with the reasons for the change.

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.

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.

Identifying potential long-term carers for the child within the family may include those who are either resident in, or nationals in, overseas countries. Special guardianship can be considered in placing a child outside of the jurisdiction. Consideration must be given to how assessments are carried out in a legally compliant and culturally relevant manner. Thought should be given to:

• The status of special guardianship in that country and other legal matters;
• The relevant matters associated with the care of children in that country: permanent, stable and secure family life; safeguarding; education and health; and specifically how all of these relate to the personal living circumstances of the host family and their need for support services, including financial and therapeutic support and contact between family members including those resident in the UK.
• Contacting local agencies in that country for guidance on the support that maybe offered.

In advance of the child being placed, a plan will need to be agreed about how the placement will be supported and what the contingency arrangements are for the child.

Best Practice Guidance: Special Guardianship Orders (Public Law Working Group, 2021) provides that if  the proposed carers appear to be viable, time may be needed for Children and Families Across Borders (CFAB) to carry out an assessment. and there may unavoidable delays which will, quite properly, take the case beyond 26 weeks.

Note:

1. Contracting states to the 1996 Hague Convention will be better placed to offer co-operation and support than some other countries, (see HCCH);
2. Social workers should carefully explore the local authority's ability to provide financial support particularly after an initial 3 years. when 'out-of-area placements' are abroad.

See also Children and Families Across Borders (CFAB)

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.

The relevant local authority if the child was previously a looked after child.