Special Guardianship Orders

Special Guardianship orders are legal orders under the Children Act 1989. Special guardianship orders are an order appointing an individual to be a child’s special guardian. This essentially allows people who are not the biological parents of a child to look after the child and make decisions on their daily life including decisions on the child’s health, education and living arrangements.

The White Paper Adoption: a new approach committed the Government to legislating to create special guardianship to provide legal permanence for those children for whom adoption is not appropriate. It stated that special guardianship would:

• give the carer clear responsibility for all aspects of caring for the child and for taking the decisions to do with their upbringing. The child will no longer be looked after by a local authority
• provide a firm foundation on which to build a lifelong permanent relationship between the child and their carer
• be legally secure
• preserve the basic link between the child and their birth family
• be accompanied by access to a full range of support services, including where appropriate, financial support.

It is important to note that Special guardianship orders give the guardian full parental responsibility of a child. Parental responsibility enables guardians to make day to day decisions for the child, similar to their biological parents rights. However, the biological parents do not lose their parental responsibility rights. Where there is a dispute between the parents and the special guardian, the special guardians decision will be prevail.  

The main requirements of special guardianship orders are that you must be over the age of 18 and must not be the parent of the child to whom the order relates to.

The following people are able to apply for special guardianship orders:

• Any guardian of the child.
• Anyone granted a Child Arrangements Order or a Residence Order for the child by the court.
• 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 their care.
• A local authority foster parent with whom the child has lived for at least one year.
• A relative of the child and the child has resided with them for at least one year immediately prior to apply for special guardianship orders. This could include grandparents, uncles and aunties with whom the child has resided with.
• Anyone who has the consent of those with the parental responsibility.
• Anyone who has permission from the court to apply for special guardianship orders.

Before making an application for special guardianship orders the person looking to receive parental responsibility must inform Children’s Services in writing notice of their intention to apply for special guardianship orders. This must be done at least three months before submitting an application to your local family court.

After an application to a family court or upon receipt of an order from a family court the local authority will be directed to prepare a suitability assessment report on the person being considered for a special guardianship.  This process is known as the special guardianship order assessment.

The Special Guardianship Regulations 2005 is considered as part of the special guardianship order assessment.

The Special Guardianship regulations contains a list of factors to be considered in the special guardianship order assessment which include:

• Basic details about name, date of birth, address and background
• Details of any current or previous marriage or civil partnership or cohabiting relationship
• If the proposed special guardians are in a relationship, an assessment of their relationship
• The current relationship with the child/ren concerned
• A health history
• Details of how the proposed special guardian relates to adults and children
• Previous parenting experience
• Details of income and expenditure
• Details of other members of the household
• Details of any other child of the proposed special guardian, even if they are not part of the household
• The views of other household members about the application
• Employment history
• Details of any other involvement in family court proceedings
• Reasons for making the application
• Hopes and expectations for the child/ren’s future
• Wishes and feelings about the child/ren’s contact with parents

As part of the special guardianship order assessment the local authority will also carry out criminal record checks as well as speaking to referees to assess the suitability of a guardian.

Prior to completing the special guardianship assessment a medical assessment will also be carried out by a GP.

Our child law specialists understand that a special guardianship order assessment is a difficult and lengthy process given that many meetings will be required to complete this process. Should you require assistance then please contact our offices to arrange for a consultation. We can look to prepare you adequately for the special guardianship order assessment and assist you with your application for special guardianship orders.

Once the special guardianship order assessment is complete the report will be presented to the court who will review the report prior to approving or declining the application for special guardianship orders.

Following successful special guardianship order applications financial support may be available to assist with the care of the child. The local authority has a duty to consider what financial support is available to special guardians. They will make an assistance and if applicable will notify the special guardian of the support available including any financial support.

A special guardianship allowance which is a form of financial support may also be available to guardians. This is means tested and the circumstances of the guardian will be assessed prior to the local authority providing this financial support.

Another form of financial support available under special guardianship orders is an assistance in cash. These payments are usually made to contribute towards paying for a babysitter to provide respite for an evening or money for petrol to facilitate a contact visit for the child.

If you have already made an application for special guardianship orders and would like to discuss the financial support available, then we welcome you to contact one of our child law specialists who would be happy to provide you with further advice.

At Kabir Family Law our strong child law specialist team commonly find people innocently disregard considering the financial support element; partly because they don’t get early legal advice. It is unfortunate that we have seen the local authority are far too quick to pass their hands over to special guardians.

Before applying for a special guardianship order you should seek early legal advice on the financial differences between having a special guardianship order to adoption so you can be safe in knowledge of which option may be better suited for you.

Many people often question how to end a special guardianship order. A special guardianship order automatically ends once a child attains the age of 18. If you currently have special guardianship of a child and would like to make alterations to the agreement then the following 2 options are available to you.

• Varying a special guardianship order: this allows you to vary the terms if you’re wanting to change certain things outlined in the agreement.
• Ending a special guardianship order: If you want the order to come to an end, you must petition to end the special guardianship agreement.

As special guardianship orders intend to provide children with stability and a permanent home in the long-term, it’s usually difficult to end an order without good reason. However, it is possible to end a special guardianship order if you are able to prove a significant change in circumstances that indicate it would be better and in the child’s welfare for the guardianship order to end.

For more information on how to end a special guardianship order or if you would like advice on your application to end a special guardianship order our family law specialists are at hand and will be able to provide you with your options in considering whether it is beneficial for you to vary special guardianship order.

Do parents have to apply for a special guardianship order?

Parents usually automatically acquire parental responsibility therefore they would not need to apply for a special guardianship orders. However, parents without parental responsibility may be able to apply to for special guardianship orders.

When do special guardianship orders end?

If there are no disputes or special circumstances, special guardianship orders will automatically end when the child turns 18 years old.