Special Guardianship Orders

16th October 2013


by Erika Perrin, Solicitor, Family Law

Every child needs a safe, secure home with people they can love and trust. Special Guardianship is one way of providing this when children can’t live with their birth families and adoption isn’t suitable.

Every child needs to feel secure and settled in a family that loves and values them. That means strong attachments to adults who are committed to them long-term, who support their development and who guide them through childhood to adulthood. As a way of providing a legally secure foundation for the child, consideration should be given to whether it is appropriate for a Residence Order or a Special Guardianship Order to be applied for.

When making a decision regarding any Order, the welfare of the child is the paramount consideration.

What is a Residence Order?

A Residence Order can be made by a Court under the Children Act 1989. This specifies who the child lives with and gives the carer shared parental responsibility with the child’s parents.

The Residence Order will not affect the child’s legal relationship with their parents nor will it take away their parental responsibility. The day-to-day decisions will be made by those with the Residence Order without having to get anyone else’s agreement, unless the court has directed otherwise. However, no one who has a Residence Order may take the child abroad for more than a month or change the child’s surname unless everyone with parental responsibility agrees in writing or the court gives permission.

What is a Special Guardianship Order?

Special Guardianship Orders were introduced in the Adoption and Children Act 2002. It is intended to provide permanence for children living away from their birth parents, without the permanent legal breaking of ties through adoption.

Special Guardianship is a Court Order that gives a child permanent legal security in a family without giving them a new identity. Under a Special Guardianship Order, links between the child and their birth family are maintained.

A Special Guardianship Order appoints one or more people to be a child’s Special Guardian. The birth parents are still legally the child’s parents but their parental responsibility is limited. The Special Guardians will have responsibility for all aspects of caring for the child, including where the child lives and/or goes to school, and can overrule others with parental responsibility in decision making. A child’s name may not be changed unless everyone with parental responsibility agrees in writing or the court gives permission.

It is a more secure Order than a Residence Order because a parent cannot apply to discharge it unless they have the permission of the court to do so, however it is less secure than an adoption order because it does not end the legal relationship between the child and his/her birth parents.

Who can apply for Special Guardianship Orders?

The following people may apply to be special guardians:

– Any guardian of the child.
– Any individual who has a residence order or any person where a residence order is in force and who has the consent of the person in whose favour the residence order is made.
– Anyone with whom the child has lived for at least three years out of the last five years.
– Anyone with the consent of the local authority if the child is in care.
– A local authority foster parent with whom the child has lived for at least one year preceding the application.
– Anyone who has the consent of those with parental responsibility.
– Anyone who has the leave of the court.

You must be over 18 years of age and you can apply on your own or jointly with another person.

Who cannot apply for a Special Guardianship Order?

A parent of a child may not be appointed as the child’s special guardian.

The Court must decide that a Special Guardianship Order is the most appropriate order to make in the best interests of the child. The court must consider whether, in addition to the making of a special guardianship order, a contact order should be made and whether any existing Section 8 Orders should be varied or discharged.

The Court must have the benefit of the local authority report dealing with the suitability of the applicant and any other matters that the local authority consider relevant before it can make an order (Children Act 1989, section 14A(8), (9).

What is the effect of a Special Guardianship Order?

The Special Guardian has responsibility for day to day decisions relating to a child’s care and upbringing. This Order allows a Special Guardian to remove a child from the UK for up to three months without consent of others with Parental Responsibility or the leave of the Court. The Court can give permission for the child to be taken out of the jurisdiction for longer than three months. On making a Special Guardianship Order the Court may give leave for the child to be known by a new surname.

How to apply for a Special Guardianship Order?

The Local Authority has a central role in the proceedings for a Special Guardianship Order. Unless the proposed Special Guardians have the courts permission to apply right away (because someone else is already applying to adopt the child), it is necessary to give the Local Authority a minimum of three months written notice of your intention to apply to the Court. The Local Authority will then investigate the suitability to become the child’s Special Guardian and will submit a Report to the Court when the application has been made. The Court will then consider the application and the Local Authorities report and will make a decision.

Local Authority Duties

When a Special Guardianship Order is made the Local Authority is under no duty to monitor the placement. However, the Local Authority will make Special Guardianship support services available to meet assessed need in the areas of; counselling, advice, information, respite care, therapy services and financial support (‘means’ tested). If on-going financial support is paid, a financial assessment must be undertaken annually, or if there are any changes in circumstances. Changes in circumstances must be notified to the Local Authority.

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