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5.15.1 Special Guardianship Orders

RELEVANT GUIDANCE

DfE, Special guardianship guidance: Statutory guidance for local authorities on the Special Guardianship Regulations 2005 (as amended by the Special Guardianship (Amendment) Regulations 2016) (2017)

Adoption Support Fund

RELEVANT CHAPTER

Court Reports in Adoption and Special Guardianship Procedure

AMENDMENT

This chapter was amended in July 2017 as a result of an internal review of Special Guardianship Orders and comprehensively details the policy and processes regarding applications for Special Guardianship Orders, including the financial support that may be available. The chapter provides a link to the latest statutory guidance, (see Relevant Guidance above).


Contents

  1. Introduction
  2. Who May Apply
  3. Parental Responsibility
  4. The Circumstances in which a Special Guardianship Order may be Made
  5. Planning Meeting
  6. Approval of Special Guardianship for Children Looked After and the Role of the Permanence Panel
  7. Report to the Court
  8. Discharge of Special Guardianship Order
  9. Special Guardianship Support
  10. Entitlement to Assessment for Special Guardianship Support (Not including Financial Support)
  11. Assessment for Support
  12. The Special Guardianship Support Plan
  13. Review of Special Guardianship Support Plan
  14. Financial Support
  15. Urgent Cases
  16. Special Guardian Duty on the Death of a Child


1. Introduction

Special Guardianship Orders came into force on 30 December 2005 by an amendment to the Children Act 1989. The Act is supported by the Special Guardianship Regulations 2005 and statutory Guidance.

A Special Guardianship Order provides legal permanence for children for whom adoption is not appropriate. It provides carers the authority to make the necessary decisions to enhance the welfare of the child. It gives the Special Guardian parental responsibility and the power to take decisions on the upbringing and care of the child to the exclusion of all others (except a joint Special Guardian).  Birth parent(s) retain a level of parental responsibility and the child cannot be adopted without their consent. Examples of where Special Guardianship Orders are appropriate are:

  • Some children, especially older children who want the sense of security but without an absolute break from their birth family;
  • Those who have religious or cultural difficulties with adoption;
  • Foster carers where there is a meaningful relationship with the parents.

If the child was formerly in the care of the local authority, they cease to be so upon the making of a Special Guardianship Order. The order is intended to promote a permanent relationship between the child and the carer which is legally secure and aims to preserve the link between the child and their birth family. Local Authorities have a statutory duty to make provision for a range of services to support people affected by special guardianship (this includes the child, carer, parents and potentially wider family members).

The effects of the making of the special guardianship order are:

  • The special guardian will have Parental Responsibility for the child and holds an overriding decision making power of all others (except another special guardian) until the child is 18 years old. This overriding power is granted with certain exceptions that are controlled by the court making which are set out below;
  • The child may be known by a new surname with the leave of the court and / or written consent of everyone with parental responsibility;
  • The child may be taken out of the country for longer than 3 months with the leave of the court and/or written consent of everyone with parental responsibility.

The birth parents legally remain the child’s parents but their ability to exercise parental responsibility is limited to the right to consent or not to adoption and to consent in those situations where the law requires the consent of more than one person with parental responsibility. The parent would not be able to exercise PR if the SGO were to use their parental responsibility in opposition.

The special guardian must take reasonable steps to inform the birth parents if the child dies.

On the 29th February 2016 Special Guardianship (Amendment) Regulations 2016 came into force. In brief, these regulations require that Special Guardianship assessments/court reports include a thorough consideration of:

  1. Any harm which the child has suffered and any risk of future harm to the child posed by their parents, relatives or any other person considered relevant, for example a partner of the parent;
  2. The child’s current needs and their likely future needs; 
  3. The nature of the child’s relationship with the prospective special guardian both at the time of the assessment and in the past;
  4. The parenting capacity of the proposed special guardians and their ability to understand and meet the needs of the child until the age of 18 years.


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 people may apply:

  • Any guardian of the child;
  • Where the child is subject of a 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 holds a Residence Order / Child Arrangements Order with respect to the child or who has the consent of all those in whose favour a Residence Order/Child Arrangements Order is in force;
  • Anyone with whom the child has lived for three out of the last five years;
  • 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 has Parental Responsibility for the child and will have clear responsibility for the day-to-day decisions about caring for the child.

The child's parents continue to hold Parental Responsibility but their exercise of it will be limited. The parents 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:

  • Change of the child's name;
  • 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.

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.


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. 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 needs of the child, the suitability of the applicant(s), the proposed contact arrangements and the support needs (see Section 11, 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 (DBS) and other statutory checks undertaken for the assessment.

A full list of the matters to be included in the report is set out in the Family and Friends / Connected Persons Assessment Report Form.


6. Approval of Special Guardianship for Children Looked After and the Role of the Permanence Panel

If the child is Looked After and the application has been agreed as part of the child's Permanence Plan, the assessments will usually have been undertaken and the outcomes agreed as part of the permanence planning for the child, in which case there will be no need to hold a planning meeting.


7. Report for the Court

The social worker or social workers preparing the Court report should be suitably qualified and experienced.

A full list of the matters to be included in the report is set out in the Family and Friends / Connected Persons Assessment Report Form (The Fostering Network).

Once completed, the Court Report should be submitted by the author(s) to the Head of Permanence and Provision and to Legal Services for approval.


8. 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 with a Residence Order/Child Arrangements Order in respect of the child before the Special Guardianship Order was made; 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.


9. Special Guardianship Support

The local authority must make provision for a range of Special Guardianship support services.

Special Guardianship support services are defined as:

  • Services to enable children, Special Guardians and parents to discuss matters relating to the arrangements for the child;
  • 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;
  • Financial support - this will only be considered where the child was in the care of the local authority immediately before the Special Guardianship Order was granted (see Section Section 14, Financial Support).

Special Guardianship Support is subject to the approval of the Permanence Panel. (See Knowsley Multi-Agency Permanency Panel - Terms of Reference Procedure).

Support services should not be seen in isolation from mainstream services.

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.


10. Entitlement to Assessment for Special Guardianship Support (Not including Financial 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.

If a decision is made not to undertake a financial assessment, the person requesting the assessment should be notified in writing of the decision and the reasons for it. They should be allowed 28 days to make representations in relation to that decision.


11. Assessment for Support

The assessment should be based on the Assessment Framework (see Single Assessment Framework Procedure) and include the following:

  • The developmental needs of the child;
  • The parenting capacity of the Special Guardian or prospective Special Guardian;
  • Family and environmental factors for the child;
  • 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 Permanence Panel.

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;
  • If financial support is to be paid, the amount and conditions attached (please see Section 14, Financial Support which considers financial support).

Ongoing review of support plans

The Special Guardianship designated worker will be responsible for the review of any future support plans. 

Where it is identified that a child is in need a referral will be made to the MASH duty team to carry out the assessment in relation to the child. 


12. 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 set out:

  1. The services to be provided;
  2. The objectives and criteria for success;
  3. Timescales;
  4. Procedures for review;
  5. A named person to monitor the provision of services in accordance with the Plan.

Special Guardianship Support will be subject to the approval of Permanence Panel.

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 Head of Service for Permanence and Provision 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.


13. 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.

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.


14. Financial Support

Financial support or assistance is payable to a special guardian or prospective special guardian if it is to:

  1. Facilitate arrangements for a person to become a special guardian for a child where the local authority consider such arrangements to be beneficial to the child’s welfare; or
  2. Support the continuation of such arrangements after a special guardianship order is made, (see Regulation 6).

In general, financial support is payable in the following circumstances:

  1. Where the local authority considers such financial support necessary to ensure the special guardian can look after the child;
  2. Where the local authority considers that the child needs special care which requires a greater expenditure of resources than would otherwise be the case because of his or her illness, disability, emotional or behavioural difficulties or the consequences of past abuse or neglect. This would take into account the benefit entitlements to the Special Guardian.

A financial assessment will not ordinarily be agreed. For these children a needs-based financial assessment may be completed and outlined in the support plan for a Child who has not been looked after. 

All requests for financial support for Special Guardianship Orders must meet the criteria (outlined in Section 5, Planning Meeting) and be agreed via a recommendation made by the Permanence Panel.

One Off or single payment shall be considered for:

  • Legal costs and expenses (e.g. Court Costs) and also future Court costs. Payments for legal costs will not be considered where the Local Authority opposes the application for a Special Guardianship Order.

Where financial support is paid as a periodic payment this will be means tested using the model means test. The model is based on disposable income; there must be no reward element in financial payments other than as a transitional provision for foster carers becoming Special Guardians for a child for whom they are currently caring.

Financial support paid to Special Guardians under the regulations cannot duplicate or be a substitute for any payment to which they would be entitled under the tax and benefit system. The Adoption and Special Guardianship Support Services Regulations 2003 do not allow financial support to be provided that duplicates payments available through the tax and benefit system.  Special Guardians will be offered assistance in making claims for the appropriate benefits. If they decide not to make a claim for a benefit to which they are entitled a notional amount will be deducted from their allowance. 

Following the financial assessment, at the discretion of the Local Authority, the maximum payment will ordinarily be the basic fostering allowance payable to Knowsley foster carers were the child fostered, (at the presenting age of the child at the time the assessment and any subsequent review takes place). The amount is calculated using information supplied on the means test form that takes into consideration household income and expenditure. It will be reviewed on an annual basis and whenever there is a significant change in circumstances, for example redundancy or change in employment status.

The agreement of the Permanence Panel must be obtained prior to formal notification being sent to the Special Guardians or prospective Special Guardians and or the case being lodged into court.

Payments for former foster carers

An element of payment to former foster carers may be payable providing the decision to include it is taken before the Special Guardianship Order is made and the Local Authority consider it be necessary to facilitate arrangements for a person to become a Special Guardian where:

  1. The Special Guardian or prospective Special Guardian has been a Local Authority foster parent in respect of the child/ren;
  2. An element of remuneration was included in the payments by the Local Authority to that person in relation to fostering the child.

Any payments element ceases to be payable after 2 years from the making of the order unless the Local Authority consider its continuation to be necessary. The Special Guardianship report or Single Assessment should identify that need.

Payment of financial support

Financial support that is to be paid periodically will not be paid until the Special Guardian or prospective Special Guardian agrees to the following conditions (Reg 10):

  1. The Local Authority is informed immediately if:
    • They change address; or
    • The child dies; or
    • The child ceases to reside with them; or
    • The child ceases full time education or training and commences employment or qualifies for a placement on a Government training scheme; or
    • There is a change in the financial circumstance or the financial needs or resources of the child which may affect the amount of financial support that is payable.
    Where the information is given verbally it must be confirmed in writing within 7 days.
  1. That the Special Guardian will complete and supply the Local Authority with an annual statement as to matters concerning:
    1. Their financial circumstances;
    2. The financial needs and resources of the child;
    3. Their address and confirmation the child continues to reside with them.

Failure to comply with the conditions and expectations required may result in the suspension or termination in the payment of financial support. The decision will be made by the Head of Service for Permanence and Provision.

If children have ongoing regular respite care provided and paid for by the Local Authority the allowance will be reduced accordingly. This will then be reviewed in the annual needs led review. A change in the needs led review should be agreed by Permanence Panel.

CESSATION OF FINANCIAL SUPPORT

Financial support ceases to be payable if:

  1. The child ceases to reside with the Special Guardian; or
  2. The child reaches 18 years unless in continuous Full time education or training; when it may continue until the end of the course /training being undertaken; or
  3. The child ceases full-time education or training and commences employment or qualifies for benefits in their own right;
  4. The funds are not being used to meet the child’s needs;
  5. False information is received by the Local Authority.

All Special Guardianship payments will be subject to an annual financial review which will be undertaken by Children’s Social Care in conjunction with the local authority’s Revenue and Benefits Service.


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 Head of Service for Permanence and Provision 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.

End