Special Guardianship Orders – Reviewing the Journey so far

 

Special Guardianship is a legal status introduced by the Adoption and Children Act 2002.  A Special Guardianship Order fits broadly between a Child Arrangements Order and an Adoption Order in terms of the carer taking responsibility for the child. Special Guardianship offers permanency for the child and offers greater security than long-term fostering, as it lasts until the child reaches 18. It does not require the legal severance from the birth family which is the result of an adoption order.

A Special Guardianship Order is an order appointing a person or persons to be a child’s Special Guardian. Applications to become Special Guardians may be made by an individual or jointly by two or more people. Joint applicants do not need to be married. Special Guardians must be aged 18 or over. The parents of a child may not become that child’s Special Guardian.

The court may make a Special Guardianship Order in any family proceedings concerning the welfare of a child if it considers that an order should be made. This applies even where no application has been made and includes adoption proceedings. When considering whether to make a Special Guardianship Order, the welfare of the child is the court’s paramount consideration.

Any person who wishes to apply for a Special Guardianship order must give three months written notice to the local authority of their intention to apply.The exception to this is when the person concerned needs leave to apply for a Special Guardianship Order.  On receipt of 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 applicants to be Special Guardians. This requirement applies to both Looked After and other children. The information to be included in the report to the court is set out in Regulation 21 of the Special Guardianship Regulation 2005 and the schedule thereto. The court  cannot make a Special Guardianship Order unless it has received the report covering the suitability of the applicants.The Special Guardian will have parental responsibility for the child. The Special Guardian may exercise Parental Responsibility to the exclusion of all others with parental responsibility, apart from another Special Guardian. The intention is that the Special Guardian will have clear responsibility for all the day to day decisions about caring for the child or young person and his/her upbringing. Unlike adoption the order preserves the child’s basic legal link with its birth parents. They remain legally the child’s parents, though their ability to exercise their parental responsibility is limited. They retain the right to consent or not to the child’s adoption or placement for adoption. The Special Guardian must also take reasonable steps to inform the parents if the child dies. While a Special Guardianship Order is in force, the written consent of every person who has parental responsibility for the child or the leave of the court must be given: to cause the child to be known by a different surname and to remove the child from the United Kingdom for longer than three months.

Support Services

Local authorities are required to make arrangements for the provision of Special Guardianship Support Services. These include counselling, advice, information and such other services (including financial support) as are prescribed in the Regulations. The Regulations also provide for the assessment of needs for Special Guardianship Support Services, and the planning and the reviewing of those support services. Consequently, it is important that early discussions about support take place between the applicants and the Local Authority. The social worker will need to prepare a Special Guardianship Support Plan which will be presented at court.

Changes over the years

The courts have had the ability to make Special Guardianship Orders since December 2005. Section 14A (3)(a) Children Act 1989 sets out the power of the court to make a Special Guardianship Order when an application is made by a person eligible to do so. Section 14A (3)(b) contains the power where that individual has obtained the leave of the court to apply. The Court may also make a Special Guardianship Order in relation to a child in any family proceedings in which a question arises with respect to the welfare of the child.

A review of Special Guardianship Orders was undertaken in 2015 by the government which focused on concerns relating rushed or poor quality assessments, potentially risky placements being made and inadequate support for Special Guardians. The review caused amendments to be made to the Special Guardianship Regulations 2005, through the Special Guardianship (Amendment) Regulations 2016. Those amendments were aimed at strengthening the Special Guardianship Orders assessment process and in particular to ensure that any harm the child had experienced was identified and that the capacity of the prospective Special Guardians to address consequences arising from those issues in the parenting of the child were considered.

 

The case of P-S (Children) [2018] EWCA Civ 1407 highlighted the ongoing need for further clarification as Special Guardianship Orders have evolved. The Court of Appeal gave general guidance on the approach to be taken in consideration of Special Guardians and the making of Special Guardianship Orders within care proceedings. The President of the Family Division who gave a separate judgment argued that there was a real need for alternative guidance to sit alongside the statutory materials and invited the Family Judge Council to undertake such a test.

In June 2020 the Public Law Working Group made recommendations to achieve best practice in relation to Special Guardianship Orders.  The report highlighted that a number of controversies had emerged in recent years about the use of Special Guardianship Orders :

“These are mainly whether the courts are giving Local Authorities and potential Special Guardians sufficient time for full assessments to be undertaken and for everyone to fully understand the implications and effects if the order is to be made, which will last until the child turns 18. Associated with the above issues the guidance highlighted that Special Guardians receive minimal advice and support from Local Authorities compared with foster carers, although there is little to distinguish between the extent of children’s welfare needs.”

Four recommendations were made that were to come into effect immediately :

  1. More robust (i.e. stronger) and more comprehensive special guardian assessments and support plans with renewed emphasis on the child and special guardianship relationship.
  2. Better preparation and training for Special Guardian
  3. A reduction in the use of Supervision Orders with Special Guardianship Orders.
  4. Renewed emphasis on parental contact.

 

In addition the Working Group made four aspirational recommendations:-

  1. Review of the fostering regulations.
  2. The possibility of interim Special Guardianship Orders.
  • Further duties on Local Authorities to identify potential carers.
  1. The need for greater support for Special Guardians including a review of public funding for proposed Special Guardians.

The report highlights concerns over rushed assessments since the introduction of the 26-week time limit to complete care cases in 2014. It also sets out the options of testing out potential Special Guardianship Orders in situations where the child is not in a settled living arrangement with the potential Special Guardian.

The March 2021 Best Practice Guidance set out some key themes which reinforce what had been set out in the June 2020 recommendations :

  1. i) The assessment of a proposed Special Guardian should be thorough, comprehensive and evidence and experience informed.
  2. ii) The support plan should be comprehensive and set out the support and services to be provided to the child and the prospective Special Guardian.

iii) Where there is little or no prior connection/relationship between the child and the prospective Special Guardian, it is very likely to be in the child’s best interests to be cared for on an interim basis by the prospective Special Guardian in order to establish a meaningful relationship with the child.

  1. iv) The Special Guardianship Support Plan should be based upon the lived experience of the child and the lived experience of the prospective Special Guardian
  2. v) The Special Guardianship Support Plan should set out the contact arrangements between the child and parent(s) and should include: – The type of contact which is to take place – The frequency and duration of contact – Who is to be responsible for making the arrangements of contact – What practical arrangements need to be provided to facilitate contact – What professional support and assistance if any will be provided to the prospective Special Guardia
  3. vi) Save for cogent reasons, a supervision order should not be made alongside a Special Guardianship Order.

 Variation and Discharge

Unlike adoption orders, Special Guardianship Orders can be varied or discharged on the application of :

  • the Special Guardian
  • the Local Authority in whose name a care order was in force with respect to the child before the Special Guardianship Order was made
  • anyone named in a Child Arrangements Order as a person with whom the child was to live before the Special Guardianship Order was made.

Some applicants require the leave of the court:

  • the child’s parent or guardian
  • 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)

Change of Circumstances

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.

So parents who wish to apply to discharge a Special Guardianship Order to recover the care of the child must obtain the court’s permission.

Two stages

The first stage is that a parent who wishes to obtain permission to apply to discharge the Special Guardianship Order must show a significant change in circumstances. If a parent cannot show a significant change in circumstances their application will fail. If a parent shows there is a significant change in circumstances, the court has to go on to stage two. The court will only give permission for an application to discharge the order if it is satisfied that there has been a significant change of circumstances since the Special Guardianship Order was made. The only exception to this is when it is the child who is seeking leave to apply for a discharge.

At stage two the court will decide whether leave should be granted, based on a realistic evaluation of the applicant’s prospects of success in the context of the effect on the child’s welfare of the application being heard or not heard. The prospects of success must be real. The child’s welfare is an important factor but it is not the paramount consideration. The degree of any change in circumstances is likely to be intertwined with the prospects of success, and the greater the prospects of success, the more likely it is that leave will be granted.

A Court of Appeal case which concerned the test for granting leave to apply to discharge a Special Guardianship Order and the construction of Section14D(5) of the Children Act 1989 is Re M (Special Guardianship Order: Leave to Apply to Discharge) [2021] EWCA Civ 442.   The Court said that the legal status of special guardianship was created to offer ‘greater security for children than long-term fostering but without the absolute legal severance from the birth family that stems from adoption. ’Section 14D of the Children Act 1989 concerns the manner in which Special Guardianship Orders can be varied or discharged. A parent seeking to discharge a Special Guardianship Order requires leave of the court which can only be given if the court is satisfied that there has been a significant change in circumstances. The Court considered that significant simply means ‘considerable, noteworthy or important’. In this case the Court of Appeal  said the Judge’s test for change in circumstances was too high as she held that a guarantee was required that all the issues leading to the Special Guardianship Order had been resolved.She had also wrongly treated the child’s welfare as ‘paramount’. It was important but not ‘paramount’.

In relation to the mother’s application for parental contact, the Court stated that when a Special Guardianship Order is in effect, a parent does not need leave to apply for such an order.

Special Guardianship Orders and Care Orders

In Re F & G (Discharge of Special Guardianship Order) [2021] EWCA Civ 622 the Court of Appeal confirmed that a Special Guardianship Order can co-exist with a Care Order and remitted for re-hearing the question of whether or not the Special Guardianship Order in this case should be discharged.

This case made clear that a Care Order can be made in respect of a child whom is already subject to a Special Guardianship Order and that it is possible for Care Orders and Special Guardianship Orders to exist as a package of final orders.

The Future

Special Guardianship Orders have come a long way since they emerged on the family law scene in December 2005. This is illustrated by the large number of orders made by the courts in recent years. It is clear, however, these orders have been under intense scrutiny by the courts, working groups and others. It seems that such orders have stood the test of time but there is still some way to go. Recommendations and best practice guidance will only prove themselves once they have been adopted and successfully put into effect.  Furthermore, the aspirations set out in the 2020 Public Law Working Group report have yet to surface. Let us all hope that it will not be too long before they do.

Stuart Barlow  Solicitor 

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