Special Guardianship

First introduced in the Prime Minister’s Review of Adoption (July 2000), the aim of special guardianship was to provide "an alternative legal status for children that offers greater security than long term fostering but without the absolute legal severance from the birth family that stems from an adoption order."

The White Paper Adoption: a new approach Dec 2000 committed the Government to legislating to create the new legal status of special guardianship to provide legal permanence for those children for whom adoption is not appropriate.

Section 115(1) of the Adoption and Children Act 2002 inserts new Sections 14A - F into the Children Act 1989. These provide for:

• Who may apply for a Special Guardianship Order;
• The circumstances in which a Special Guardianship Order may be made;
• The nature and effect of Special Guardianship Orders;
• Support services for those affected by Special Guardianship.

The legislation is primarily aimed at increasing the range of permanence options for children who are looked after long term. However, other children who are not looked after, and their potential special guardians, are also eligible to apply for Special Guardianship Orders.

It was anticipated that the provision would be used mainly for older children who did not want to make the absolute legal break with their birth family that is associated with adoption. It was also seen as a potential option for children from minority ethnic communities which have cultural or religious difficulties with adoption, or for unaccompanied asylum-seeking children who retain strong attachments to their family abroad.

For a full statement of the law in relation to special guardianship the following should be consulted:

• Children Act 1989 s.14A-F;
• Special Guardianship Regulations 2005;
• Special Guardianship Guidance.

This chapter should be read alongside Special Guardianship - Financial Support Procedure.

A Special Guardianship Order (SGO) offers another option for permanence, primarily for looked after children. In terms of its effect it lies somewhere between a Child Arrangement order and an adoption order.

SGO's are not placement options for the Local Authority as they can only be made:

• On the application of an appropriate person (see Section 3, Who can Apply to Become a Special Guardian? below); or
• By the Court of its own volition in the context of any family proceedings (including adoption) if it considers an order should be made. The welfare of the child is the Court’s paramount consideration and the welfare checklist (CA1989 s.1) applies.

A child cannot be placed with previously unknown carers with a Care Plan of an SGO.

An SGO gives parental responsibility to the special guardian, and allows them to exercise this to the exclusion of all others with Parental Responsibility, except another Special Guardian. All day-to-day decisions about the child and his or her upbringing rest with the special guardian.

Birth parents retain their Parental Responsibility, but their ability to exercise this is limited. They retain the right to consent or not to the child’s adoption or placement for adoption

While an SGO is in force the written consent of all parties who have Parental Responsibility for the child or the leave of the court must be given to be able to change the child’s name, or remove the child from the United Kingdom for more than three months.

SGO's can be varied or discharged, but the threshold for discharge is higher than with a Child Arrangement Order as leave must be sought from the court to make such an application. Applications for variation or discharge can be made by:

• The Special Guardian;
• The Local Authority in whose name a Care Order was in force with respect to the child before the SGO was made;
• Anyone with a Child Arrangement Order in respect of the child before the SGO 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 SGO 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 SGO was made.

The Court can vary or discharge an SGO of its own volition if in the course of any family proceedings a question arises about the welfare of a child who is subject to an SGO.

The Local Authority is required to provide a range of Special Guardianship Support Services, to undertake assessments of need for support (including financial support) and to plan and review support services when provided.

Where an application for an SGO is made, the Local Authority is responsible for supplying the court with a report on the suitability of the proposed application.

Children who become subject to Special Guardianship Order after being looked after will qualify for Aftercare support from the Local Authority on reaching 16 (if the SGO is still in place), no matter what age they were when they ceased to be Looked After.

Applications can be made by an individual or jointly by two or more people. Joint applicants do not have to be married. Special Guardians must be aged 18 or over. The parents of a child may not become that child’s Special Guardian.

Those able to apply are:

• Any Guardian of the child;
• A Local Authority foster carer with whom the child has lived for one year immediately preceding the application;_[1]
• Anyone who is named in a Child Arrangement 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;
• Where the child is in the care of the Local Authority, any person who has the consent of the Local Authority;
• Anyone who has the consent of all those with Parental Responsibility for the child;

_{[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 applicants must give the Local Authority three months written notice of their intention to apply. This allows for a court report to be prepared. (See Section 5, Welfare Rights Assessment below).}

_{The only exception to this is where a person has been given leave by the court to make a competing application for an SGO where an application for an adoption order has already been made.}

_{If a court is considering making an SGO of its own volition in the context of other family proceedings, the Local Authority is required to provide a report on the suitability of the potential Special Guardian. The format for a report in these circumstances is the same as that in paragraph above. In these matters timescales for preparing a report are negotiated.}

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:
  1. 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;
  2. 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;
  3. 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 11, Assessment for Support) of the child, parents and the prospective special guardian.

Please note -if the applicant is a person who requires the leave of the court to make an application, no work should begin until the court has given that leave.

All applicants can receive a Welfare Rights Assessment, which aims to maximise their entitlement to benefits and/or tax credits. This is not the same as a financial assessment.

The difference between the two types of assessment can be summarised as follows:

Welfare Rights assessment: an independent assessment of the applicant’s welfare benefits and tax credits entitlement.

Financial assessment: an assessment made by the Local Authority’s Finance Team using a standard means test to establish eligibility to payments from the Local Authority.

A welfare rights assessment and a Financial Assessment should only be undertaken after agreement is given by the SM who is responsible for the SGO budget. They will record a decision on the case note and in doing so clarify which assessment has been agreed. If a financial assessment has been agreed the SM will record that subject to the means assessment establishing eligibility the LA will pay financial support.

Social workers should distinguish between the two types of assessment and ensure that applicants are similarly clear. Applicants should not be allowed to assume that because they have received a Welfare Rights assessment they will automatically be eligible to be assessed for financial support.

Details of the financial assessment process can be found in the chapter Special Guardianship - Financial Support Procedure.

The welfare rights officer will inform the applicants of the outcome directly and assist them to make any claims for benefits or tax credits to which they are entitled.

On receipt of the letter of notification the business support worker creates a file if the applicant/s is not already known. As it may be necessary to obtain statutory checks on other members of the household, they should also be added to as new persons, if not already on the system.

It is important to initiate statutory checks as soon as possible once the referral has been received. The business support worker will start the SGO checks and ensure that the applicants and child are linked on the electronic system.

Although this will come through attached to the file of the first applicant only, the admin worker should initiate a “Special Guardianship - Statutory Checks” episode on each applicant and any member of the household who requires checks.

Where the applicants are existing foster carers applying for a SGO in respect of a child in their care, information from the three yearly statutory checks should be used and transposed into this episode. Checks should be repeated as usual in the three year cycle. For all other applicants the following checks and references will be sought, see forms on line for list of letters, references and checks to be sent.

• SGO – Statutory agency checks;
• SGO Declaration of health;
• SGO declaration of suitability;
• SGO letter to doctor;
• SGO Letter to parents;
• SGO personal reference letter, 3 references are required;
• DBS checks. An enhanced disclosures for each applicant (one for each adult member of the household)is required. Where applicants are liable to cover the costs of DBS checks themselves (see Section 4, Responding to a Notification or when the Local Authority does not support the application) the applicant must cover this cost.

The business support worker will record the results of all checks, scanning forms etc into the Documents screen on the electronic file.

Regulations 3-5 of the Special Guardianship Regulations 2005 set out the support services to be provided, options for how they may be provided and the Local Authority responsible for delivering the services.

Support Services consist of:

• Financial support;
• Groups to discuss matters relating to Special Guardianship for:
  • Children for whom Special Guardianship is being formally considered or where an SGO is already in force;
  • Special Guardians or prospective Special Guardians;
  • Parents of the child.
• Assistance in relation to contact;
• Therapeutic services for the child;
• Assistance to maintain the relationship between the child and special guardian, including training to meet any special needs of the child, respite care and mediation in relation to matters relating to SGO's;
• Counselling, advice and information;
• 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.

These support services “mirror” those which are to be provided in relation to adoption support. However, given the smaller number of people who qualify for such services and the different needs and circumstances of those who are Special Guardians, the way in which these services are provided may well be different. For example, Nottinghamshire can arrange for another Local Authority or other agencies (as defined in Regulation 4) to provide support services on its behalf.

For details of the Special Guardianship Financial Support scheme see chapter Special Guardianship - Financial Support Procedure.

Children, Special Guardians and parents will be signposted to appropriate support groups for those affected by special guardianship.

For Special Guardians living within Nottinghamshire, assistance in the form of advice and guidance about contact may be sought from:

• The Family Service for Special Guardians who are relatives of the child.

In exceptional circumstances it may be necessary to establish indirect contact with birth parents through a letterbox arrangement. In such cases no undertaking should be given without the Service Manager of the appropriate Children’s Services Team first discussing this with the Team Manager of Support After Adoption so that the appropriateness and capacity to manage such an arrangement can be fully considered.

If Special Guardians live outside Nottinghamshire and the children concerned have not been looked after previously by this Department, the Local Authority in whose area the Special Guardians live is responsible for any assessment for support services, including financial support, and for the provision of any services agreed.

In relation to therapeutic services for a child it is essential that these are identified in any assessment for support services and clearly recorded in the Special Guardianship Support Plan.

Where respite care is being considered, the priority should be to identify members of the special guardian’s family or friends who could offer short-term care if the need arose. This should be considered at the time of assessment for support services.

The Local Authority responsibility for undertaking an assessment of need and providing any support services will vary according to whether the child was previously looked after, and if so the length of time that has elapsed since the making of the SGO.

The following scenarios apply when a child was previously Looked After:

First three years from the date of the SGO

Responsibility for the assessment and provision of services to the child, Special Guardian and any children of the Special Guardian remains that of the Local Authority where the child was last Looked After. This applies wherever the family lives during that period of time.

After the first three years from the date of the SGO

The Local Authority where the Special Guardian lives becomes responsible for assessing and providing support services. The only exception to this is where the special guardian is receiving on-going financial support from the original Local Authority, who will continue to be responsible for making these payments for as long as the family qualify for payments.

Where the child who is the subject of the SGO was not previously Looked After the Local Authority where the Special Guardian lives at the time is always responsible for assessment and support. This includes assessment and support for the child’s relatives who may live elsewhere.

Regulation 5 permits the Local Authority to provide services to people outside their area in other circumstances if the Local Authority considers it appropriate. This might be the case, for example, where a family is moving into another authority and transfer of services needs to be negotiated.

For assessment for financial support see chapter Special Guardianship - Financial Support Procedure.

Regulation 11 of the Special Guardianship Regulations 2005 deals with the parties who must and who may receive an assessment.

For provision of financial support see chapter Special Guardianship - Financial Support Procedure.

Regulations 14 - 16 of the Special Guardianship Regulations 2005 deal with communicating the outcome of the assessment for Special Guardianship Support services and the subsequent actions required by the Local Authority.

Once an assessment has been completed and the Local Authority decides that a person has a need for Special Guardianship Support Services, it must decide whether to provide such services. A notice must be sent to the person concerned explaining the outcome of the assessment and indicating whether support services will be provided, and in what form.

If the Local Authority intends to provide support services on more than one occasion, and the services are not limited to advice or information, a written plan must be produced. This should be sent with the Notice of Outcome of Assessment. If the assessment has identified a need for services provided by health, education or other agencies, the Local Authority must consult with those agencies before preparing the plan.

An individual must be nominated to monitor the provision of services in accordance with the plan. SGO Support Plan

The plan must include:

• The services to be provided;
• The objectives and criteria for evaluating success;
• Timescales for provision;
• Procedures for review;
• The name of the person nominated to monitor the provision of services in accordance with the plan.

If the Local Authority does not propose to provide support services, the reasons will be recorded in the Notice of Outcome of Assessment. The person concerned will be given the opportunity to make representations and will have 28 days to do so from the date the proposed decision is sent to them.

After considering any representations received, the Local Authority must make a decision as to whether to provide support services to the person assessed, taking into account the individual circumstances of the case and the resources that are available locally. Once a decision has been made, the person concerned must be notified in writing, giving reasons for the decision. If the decision is that support services are to be provided a written plan must be prepared and sent to the person who has been assessed (see above).

Regulation 17 of the Special Guardianship Regulations 2005 stipulates arrangements for reviews of special guardianship support plans.

Where support services are being provided (excluding financial support paid periodically) the Local Authority must review these:

• If any change of circumstances comes to their attention which may affect the provision of support services;
• Whenever they consider it appropriate to do so;
• At least annually.

The review process should be the same as the original assessment process (see 9.2). However, the form the review takes may vary according to circumstances. This may, for example, be achieved by an exchange of correspondence, e-mails or telephone calls. However, where a change of circumstances is more significant (e.g. a serious deterioration in the behaviour of the child) it will normally be more appropriate to meet and conduct a new assessment of needs.

If as a result of the review the Local Authority proposes to vary or terminate the support services provided, the person concerned must be given notice of this and will be given 28 days to make representations.

If services continue to be provided, a revised written plan must be produced using the same format as the original.

Appendix 1: Court Report

Appendix 2: Support Plan

Appendix 3: Initial Information Form

Appendix 4: Employers Reference

Appendix 5: Initial Household Income Assessment

Appendix 6: SGO Declaration of Health

Appendix 7: SGO Declaration of Suitability

Appendix 8: SGO Letter to Doctor

Appendix 9: SGO Letter to Parents

Appendix 10: SGO Personal Reference Letter