Special Guardianship Orders

Part of: Family Law Specialists

A special guardianship order (SGO) hands a child’s day-to-day care to someone who is not their parent. It then lasts until the child turns 18. Usually that person is a grandparent, an aunt, an uncle, an older sibling or a family friend.

If you are reading this, something has probably already gone wrong at home. Perhaps the parents cannot cope. Children’s services may have asked whether you could step in instead. Our family law specialists at Kabir Family Law explain below what an SGO does and who can apply. Then we cover the timetable, the money and the points where people lose both. Those decisions arrive earlier than most people expect.

What is a special guardianship order?

A special guardianship order is a court order under section 14A of the Children Act 1989. It appoints a named adult as the child’s special guardian. The order gives that person parental responsibility, and the power to use it ahead of everyone else who holds it.

Parliament created the order through the Adoption and Children Act 2002, for children who need a permanent home but for whom adoption does not fit. The Adoption white paper set out what it should achieve. In short, special guardianship should:

• give the carer clear responsibility for the child’s upbringing, so the local authority no longer looks after the child
• build a lifelong, permanent relationship between the child and their carer
• be legally secure
• keep the basic link between the child and their birth family
• come with access to a full range of support services, including financial support where appropriate

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.

What does SGO stand for?

SGO stands for special guardianship order. Social workers, Cafcass officers and judges all use the abbreviation, so you will hear it long before anyone explains it. People also shorten “special guardian” to “SG” in children’s services paperwork. If a letter refers to an SGO assessment or an SG report, it means the same process we describe below.

How an SGO changes parental responsibility

An SGO gives the special guardian full parental responsibility. Crucially, the parents keep theirs as well. Nobody loses parental responsibility because of the order.

Section 14C(1) of the Children Act 1989 then settles the deadlock. A special guardian may use parental responsibility to the exclusion of anyone else who holds it. Only another special guardian sits alongside you. So where you and a parent disagree about school, medical treatment or where the child sleeps, your decision stands.

That power has limits, though. A short list of decisions still needs the written consent of everyone with parental responsibility, or else the court’s permission. We set those out further down this page.

Who can apply for an SGO?

Two rules decide who can apply for a special guardianship order. You must be 18 or over, and you must not be a parent of the child. Section 14A(2) allows no exception to either rule.

Beyond that, the following people can apply without asking the court’s permission first:

• any guardian of the child
• anyone named in a child arrangements order as a person the child is to live with, although an order that only sets out contact does not count
• anyone the child has lived with for at least three of the last five years
• a local authority foster parent the child has lived with for at least one year immediately before the application
• a relative the child has lived with for at least one year immediately before the application, so grandparents, aunts and uncles often qualify on this route
• anyone with the consent of the local authority, where the child is in its care
• anyone with the consent of everyone who holds parental responsibility

If you do not fit any of those descriptions, you can still ask the court for permission to apply. Grandparents often need that extra step, especially early on. Our guide to special guardianship for grandparents works through it.

The three-month notice you must give first

Before you apply for a special guardianship order, you must tell your local authority in writing. Section 14A(7) requires that notice at least three months before the date of the application. Miss it, and the court cannot deal with your application at all.

Those three months are the single most common reason a case moves slower than a family expects. So if you think an SGO may be coming, give the notice early. You can always decide later not to apply. Our page on when to apply for special guardianship goes through the timing in more detail.

The special guardianship order assessment

Once the local authority has your notice, section 14A(8) obliges it to investigate and write a report for the court on your suitability. Everyone calls this the special guardianship order assessment. The court cannot make the order until it has that report.

A court can also direct a local authority to carry out the investigation itself under section 14A(9). That is an extra power, though, rather than the usual starting point.

The Special Guardianship Regulations 2005 set the shape of the report. Expect the social worker to want several meetings, and expect the questions to feel personal.

What the local authority report must cover

The schedule to the 2005 Regulations lists what goes in. In outline:

• your name, date of birth, address and background
• any current or previous marriage, civil partnership or cohabiting relationship
• an assessment of that relationship, if you apply as a couple
• your current relationship with the child
• your health history
• how you relate to adults and to children
• your previous parenting experience
• your income and expenditure
• everyone else in your household
• any other child of yours, even one living elsewhere
• what the rest of the household thinks about the application
• your employment history
• any other family court proceedings you have been part of
• your reasons for applying
• your hopes and expectations for the child’s future
• your wishes and feelings about the child’s contact with the parents

The Special Guardianship (Amendment) Regulations 2016 added more, where you gave notice on or after 29 February 2016. The report must now also cover any harm the child has suffered, and any risk of future harm from the parents, relatives or anyone else the local authority thinks relevant. It must assess your parenting capacity too. In particular, can you meet needs arising from that harm, and can you protect the child from that risk around contact?

Checks, referees and the medical

The local authority will run criminal record checks and speak to your referees. A GP also completes a medical assessment before the report goes in. Then the social worker files it, and the court reads it before deciding whether to make a special guardianship order.

Our child law specialists know how long and how intrusive this stage feels. If you would like help preparing for it, please contact our offices and we will arrange a consultation. We can get you ready for the assessment and guide you through the application itself.

What financial support comes with a special guardianship order?

A special guardianship order does not come with an automatic payment. Money is a separate question, and the law keeps it separate. Under section 14F of the Children Act 1989, every local authority must arrange special guardianship support services. Those services include counselling, advice and information. Regulations must secure financial support as well.

Regulation 6 of the 2005 Regulations sets out when a local authority can pay. Broadly, it covers four situations:

• where the authority decides you need help so you can look after the child properly
• where the child needs special care because of illness, disability, emotional or behavioural difficulties, or the effects of past abuse or neglect
• where the authority decides to contribute to legal costs and court fees, including an application to vary or discharge the order
• where the authority meets the cost of accommodating and maintaining the child, such as furniture, adaptations to your home, transport and clothing

Regulation 13 then governs the assessment itself. The authority must take account of any other grant, benefit or allowance open to you. It must also weigh the tax credits and benefits you would receive with the child living with you, your reasonable outgoings apart from the child, and the child’s own needs and resources. So two families in the same street can receive very different answers.

Some of those considerations fall away for particular items. Legal costs and court fees are one example. Another is the initial cost of taking in a child the local authority looked after before. Regulation 8 then governs how the authority pays what it has agreed.

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.

Sort out the money question before you apply

Our child law specialists find that people innocently park the financial side, mainly because nobody advised them early. The order and the money travel on separate tracks. As a result, families reach the end of the court process still not knowing what, if anything, the local authority will pay.

So before you apply, get advice on how the money under a special guardianship order compares with adoption. Then you can choose the route that actually works for your household, rather than discovering the gap afterwards.

Special guardianship order or adoption?

A special guardianship order and an adoption order both aim at permanence for a child. They reach it in very different ways, though. An SGO leaves the parents with their parental responsibility, because section 14C only limits how they use it. Adoption works differently, and its consequences run much further. So the choice between the two deserves proper thought rather than a quick answer.

Step-parents face it most sharply. We set the two routes side by side in step-parent adoption compared with special guardianship. If you are weighing the wider options for a child in your family, our guides to legal guardianship and to the role of a child guardian cover the alternatives.

What happens if someone breaches a special guardianship order?

There is no single offence of breaching a special guardianship order, so there is no single punishment either. What the court can do depends on which obligation was broken, and for most kinship carers the practical answer is a fresh application for a prohibited steps order or a specific issue order rather than anything to do with prison.

That distinction matters, because the route people expect is usually the wrong one. The unpaid work enforcement orders in section 11J of the Children Act 1989 apply only to a child arrangements order, not to a special guardianship order. A recovery order under section 50 is not available either, because it is limited to children who are in care, in police protection or subject to an emergency protection order. Knowing that first saves you the time and the fee of an application that cannot succeed.

Who can enforce a special guardianship order?

You do. The family court does not monitor its own orders, and support from children’s services is not the same thing as enforcement, even where the local authority carried out your assessment and pays your allowance. Section 10(4) of the Children Act 1989 names a special guardian as someone entitled to apply for any section 8 order, so you can go back to court without needing permission first. The police and children’s services come into it only where a child is at risk of harm or a criminal offence may have been committed.

What the court can do about each kind of breach

Work out which obligation has actually been broken before you decide what to ask for. These four situations look similar from the kitchen table and are very different in law.

• A parent keeps overruling your decisions. Usually this is not a breach of anything. Section 14C already lets you exercise parental responsibility to the exclusion of everyone else who holds it, so your decision on school, medical treatment or where the child sleeps stands. Where a parent keeps acting anyway, a prohibited steps order can stop the one thing they keep doing, such as collecting the child from school.
• The child is taken, or not brought back. This is the urgent one. The court can order the child’s return and attach a prohibited steps order to stop it happening again, and rule 12.16 of the Family Procedure Rules lets an application for a section 8 order be made without notice, so the court can deal with it before the other person is told. Practice Direction 12B treats that as exceptional, so be ready to explain why there was no time to give notice.
• The child’s surname is changed. Section 14C(3) says no person may cause the child to be known by a new surname without the written consent of every person with parental responsibility or the leave of the court. That restriction binds you as well. A specific issue order settles which name the child is known by, and a prohibited steps order can stop a school or a club being asked to use a different one.
• The child is taken out of the United Kingdom. The same subsection covers removal from the UK, and section 14C(4) gives a special guardian, and only a special guardian, an exception for a trip of less than three months. If a parent takes a child under 16 abroad without your consent or the court’s permission, that can be a criminal offence under section 1 of the Child Abduction Act 1984 as well as a matter for the family court.

Committal, which means being dealt with for contempt of court, sits at the far end of all of this. It only becomes possible once there is a court order carrying a penal notice and someone has deliberately broken it, which is why it is the last step and not the first. Our guide to committal proceedings in the family court explains how that works.

The decisions that cost people most are made early and quietly. Asking for the wrong order, naming the wrong person in it, or waiting to see whether things settle down can all leave you explaining months of silence to a judge, and an application made without notice when the case did not call for one can damage how the court sees you for the rest of the proceedings. If your order is being ignored, talk it through with one of our child law specialists on a free initial consultation before you file anything.

How to end a special guardianship order

A special guardianship order ends automatically when the child turns 18, under section 91(13) of the Children Act 1989. Before that, two routes exist.

• Varying the order changes particular terms, while leaving the order itself in place.
• Discharging the order brings it to an end, and only the court can do that.

Because an SGO exists to give a child a permanent home, courts do not discharge one lightly. You will need to show a real change in circumstances. You will also need to show that ending the order serves the child’s welfare better than keeping it.

Who clears a hurdle first depends on who you are. Under section 14D of the Children Act 1989, a parent, a guardian, a step-parent with parental responsibility, or someone who held parental responsibility before the order, must get the court’s leave to apply. The court may grant that leave only where a significant change in circumstances has happened since the order. A special guardian applying about their own order needs no leave at all. The child needs leave too, and the court grants it only where the child understands enough to apply.

If you are considering either route, our family law specialists will set out your options. We will also tell you honestly whether the application stands a chance.

Common questions about special guardianship orders

Do parents have to apply for a special guardianship order?

No, and they cannot. Section 14A(2) says a special guardian must be 18 or over and must not be a parent of the child. So a parent cannot hold the order, whether or not they have parental responsibility. A parent without parental responsibility has other routes instead, including an application for parental responsibility or for a child arrangements order.

When does a special guardianship order end?

It ends when the child turns 18, unless the court varies or discharges it sooner. Section 91(13) of the Children Act 1989 sets that endpoint.

Can grandparents get a special guardianship order?

Yes. A relative the child has lived with for at least a year immediately before the application can apply without the court’s permission, so many grandparents qualify on that route. Otherwise a grandparent asks the court for permission first. Our guide to special guardianship for grandparents covers both routes.

How long does the whole process take?

Most of a special guardianship order timetable sits outside your control. Count three months for the notice before you can even file. Then add the time the local authority needs for its report, and the time the court needs for a hearing. Nobody can promise you a date, so the honest answer is that the three months is the only part you control. Give the notice early, and you shorten the whole timetable.

Arrange a free initial consultation with our child law specialists today

For advice on a special guardianship order, call us on 0330 094 5880 or let us call you back. If a face-to-face meeting suits you better, our family law specialists in York can see you. We also have offices in Northampton, Oxford, London and Newcastle.