A grandparent becoming a special guardian for a grandchild

The legal issue

A grandchild needs to be brought up by a grandparent, either because the grandparent is already the person caring for the child or because the child cannot remain with a parent. The grandparent needs authority that is real and durable: enough to enrol the child at a school, consent to medical treatment and make ordinary decisions without asking permission each time, and secure enough that it cannot be unpicked whenever a parent changes their mind.

Three different orders sit in this space and they are not interchangeable. A child arrangements order naming the grandparent as the person the child lives with confers parental responsibility only while that order is in force, and only so far as it provides for the child to live with them (Children Act 1989 s.12(2)). Adoption ends the parents' legal relationship with the child altogether. A special guardianship order under Children Act 1989 s.14A sits between the two: the grandparent gets parental responsibility they can exercise to the exclusion of the parents in the ordinary run of decisions (s.14C(1)), but the parents keep their parental responsibility and remain the child's parents in law.

The legal questions are therefore: is this grandparent entitled to apply, or is the court's permission needed first; has the three-month notice under s.14A(7) been given to the right local authority; what will the local authority's report under s.14A(8) say about the grandparent's suitability; and is a special guardianship order better for this child's welfare than a child arrangements order, an adoption order, or no order at all.

In this matter, the child had come to live with a grandparent during a period of significant change within the family. The grandparent had taken on the day-to-day care that the child needed, including the ordinary routines and decisions involved in providing a stable home. The family’s circumstances required a clear and durable legal arrangement, while preserving the child’s relationship with their parents where that was safe and appropriate. The parents’ respective positions were considered as part of the welfare assessment and the arrangements proposed for the child’s future.

The law this rests on

• Children Act 1989 s.14A - special guardianship orders: who may apply, the three-month notice at s.14A(7), the local authority report at s.14A(8) to (10), and the bar on making the order without that report at s.14A(11)
• Children Act 1989 s.14B - matters the court must consider before making a special guardianship order, and leave that may be given at the same time
• Children Act 1989 s.14C - effect of a special guardianship order, including exclusive exercise of parental responsibility and the surname and removal restrictions
• Children Act 1989 s.14D - variation and discharge, including the significant change in circumstances threshold at s.14D(5)
• Children Act 1989 s.14F - special guardianship support services and the route to an assessment
• Children Act 1989 s.10(5)(b) and s.10(9) - three years' residence as an entitlement route, and the factors on a permission application, applied to special guardianship by s.14A(12)
• Children Act 1989 s.9(3) - restriction on former local authority foster parents applying for permission, applied by s.14A(4)
• Children Act 1989 s.12(2) - parental responsibility conferred by a child arrangements order, for comparison with special guardianship
• Children Act 1989 s.1(1), s.1(2), s.1(3), s.1(4)(b) and s.1(5) - welfare paramount, the delay principle, the welfare checklist and the no-order principle
• Children Act 1989 s.11(1) - the court's duty to draw up a timetable and give directions to keep to it

How we approached it

Step one: establishing the right to apply, before anything else.

Children Act 1989 s.14A(1) defines a special guardianship order as an order appointing one or more individuals to be a child's special guardian. Section 14A(2) sets two absolute conditions: a special guardian must be aged eighteen or over, and must not be a parent of the child. A grandparent clears both.

Section 14A(3) allows the court to make the order on the application of an individual who is either entitled to apply or has the court's permission to apply, or on the joint application of more than one such individual. Joint applications matter here, because a grandparent couple can apply together and be appointed together.

The people entitled to apply without permission are listed at s.14A(5). Several of the statutory routes may be open to a grandparent, depending on the child’s living arrangements, any existing orders and the consent of those with parental responsibility:

- s.14A(5)(b) - any individual named in a child arrangements order as a person with whom the child is to live. A grandparent who already holds a lives-with order is entitled to apply.
- s.14A(5)(c) - any individual listed in s.10(5)(b) or (c). Section 10(5)(b) covers any person with whom the child has lived for a period of at least three years. Section 10(5)(c) covers a person who has the consent of everyone named in an existing lives-with order, or of the local authority where the child is in its care, or otherwise of everyone with parental responsibility.
- s.14A(5)(e) - a relative with whom the child has lived for a period of at least one year immediately preceding the application. A grandparent is a relative, so one year of the child actually living with them is enough.

Where none of those applies, the grandparent applies for the court's permission under s.14A(3)(b). Section 14A(4) applies s.9(3) to that permission application, so a person who is, or was within the last six months, a local authority foster parent of the child cannot apply for permission unless they have the authority's consent, are a relative of the child, or the child has lived with them for at least a year. A grandparent is a relative, which removes that particular obstacle. Section 14A(12) applies s.10(8) and s.10(9) to special guardianship orders as they apply to section 8 orders, so on a permission application the court has particular regard to the nature of the proposed application, the applicant's connection with the child, any risk of the proposed application disrupting the child's life to the extent that the child would be harmed by it, and, where the child is looked after by a local authority, the authority's plans for the child's future and the wishes and feelings of the child's parents.

Step two: the three months' notice. This is the step that most often goes wrong.

Children Act 1989 s.14A(7) provides that no individual may make an application under s.14A(3) or s.14A(6)(a) unless, before the beginning of the period of three months ending with the date of the application, they have given written notice of their intention to make the application. The notice goes to the local authority looking after the child if the child is being looked after, and otherwise to the local authority in whose area the applicant is ordinarily resident.

This is not a formality and it is not waivable by agreement between the family. It means the clock starts three months before the application can be issued, and it means the first thing to do in a matter of this kind is send the notice, correctly addressed, and keep proof of when it was sent. Getting the recipient authority wrong restarts the three months.

The restriction bites on applications made by an individual. It does not restrict the court's own power under s.14A(6)(b) to make a special guardianship order in family proceedings where a question arises about the child's welfare even though no application has been made - which is how special guardianship orders frequently come about inside care proceedings.

Step three: the local authority report, which the court cannot do without.

On receipt of the s.14A(7) notice the local authority must investigate and prepare a report for the court under s.14A(8), dealing with the suitability of the applicant to be a special guardian, any matters prescribed by the Secretary of State, and any other matter the authority considers relevant. Section 14A(9) allows the court itself to ask a local authority to carry out that investigation and report, and the authority must do so. Section 14A(10) allows the authority to arrange for another person to act on its behalf in conducting the investigation or preparing the report.

Section 14A(11) is the provision to put in front of anyone who wants this done quickly: the court may not make a special guardianship order unless it has received a report dealing with the matters referred to in s.14A(8). There is no route round it. The assessment is the case, and the practical work in a matter of this kind is preparing the grandparent for it - housing, health, finances, the support network, the plan for contact with the parents, and an honest account of how the family got here.

Step four: what the court weighs, and in what order.

1. Welfare is paramount. Children Act 1989 s.1(1) - when the court determines any question with respect to the upbringing of a child, the child's welfare is the court's paramount consideration.
2. Delay counts against the child. Section 1(2) - the court is to have regard to the general principle that delay in determining the question is likely to prejudice the child's welfare. Section 11(1) requires the court to draw up a timetable and give directions to keep to it.
3. The welfare checklist applies. Section 1(4)(b) brings the s.1(3) checklist into play whenever the court is considering whether to make, vary or discharge a special guardianship order - and, unlike section 8 orders under s.1(4)(a), it applies whether or not the application is opposed. The court has particular regard to the child's ascertainable wishes and feelings in the light of their age and understanding (s.1(3)(a)); their physical, emotional and educational needs (b); the likely effect on them of any change in circumstances (c); their age, sex, background and any relevant characteristics (d); any harm suffered or at risk of being suffered (e); how capable each parent, and any other person the court considers relevant, is of meeting the child's needs (f); and the range of powers available to the court (g).
4. The no-order principle. Section 1(5) - the court is not to make the order unless it considers that doing so would be better for the child than making no order at all. Where a grandparent is already caring for a child with everyone's agreement, this is a real question and needs a real answer, usually about the authority the grandparent lacks without an order.
5. Whether a different order fits better. Section 1(3)(g) puts the whole range of powers in front of the court, so the comparison with a child arrangements order and with adoption is part of the welfare decision, not a preliminary to it.

Step five: what the court must consider at the point of making the order.

Children Act 1989 s.14B(1) requires the court, before making a special guardianship order, to consider whether a child arrangements order containing contact provision should also be made, whether any section 8 order in force should be varied or discharged, whether any enforcement order relating to contact provision should be revoked, and whether any activity direction made in the proceedings should be discharged. Contact with the parents is therefore decided alongside the order, not left over.

Section 14B(2) allows the court, on making the order, to give leave for the child to be known by a new surname and to grant in advance the leave required by s.14C(3)(b) for removal from the United Kingdom, either generally or for specified purposes. Asking for that at the same time avoids a second application later, for example where the family travels to see relatives.

Step six: what the order actually does, and what it does not do.

While the order is in force, the special guardian has parental responsibility for the child (s.14C(1)(a)) and, subject to any other order in force under the Act, is entitled to exercise it to the exclusion of any other person with parental responsibility apart from another special guardian (s.14C(1)(b)). That exclusivity is the whole point: it is what lets a grandparent make day-to-day decisions without negotiating each one.

It is not unlimited. Section 14C(2) preserves the operation of any enactment or rule of law that requires the consent of more than one person with parental responsibility, and preserves a parent's rights in relation to the child's adoption or placement for adoption. Section 14C(3) provides that while the order is in force no person may cause the child to be known by a new surname, or remove the child from the United Kingdom, without the written consent of every person with parental responsibility or the leave of the court - and that applies to the special guardian too. Section 14C(4) carves out a single exception: a special guardian may remove the child for a period of less than three months.

The parents keep their parental responsibility. A special guardianship order does not end it and does not make the grandparent the child's parent in law. That is the line between special guardianship and adoption, and it is the answer to the question grandparents most often ask.

Step seven: support, which carries a statutory route to an assessment.

Children Act 1989 s.14F(1) requires each local authority to make arrangements for the provision within their area of special guardianship support services, meaning counselling, advice and information, and such other services as are prescribed. Section 14F(2) requires the regulation-making power to be exercised so as to secure that local authorities provide financial support. Section 14F(3) allows a local authority to assess the needs of a child subject to a special guardianship order, a special guardian, a parent or a prescribed person for those services, and requires an assessment where regulations so provide.

Ask for the assessment. It is a separate request from the application, and grandparents who do not ask are frequently not offered.

Step eight: how durable the order is.

Children Act 1989 s.14D(1) sets out who may apply to vary or discharge a special guardianship order: the special guardian, any parent or guardian, an individual named in a child arrangements order as a person with whom the child is to live, a person who had parental responsibility immediately before the order was made, the child, and a local authority designated in a care order. Section 14D(2) allows the court to vary or discharge without any application in family proceedings where a question arises about the child's welfare.

Section 14D(3) requires the child, a parent, a step-parent with parental responsibility and a former guardian to obtain the court's permission before applying. Section 14D(4) allows a child permission only if the court is satisfied the child has sufficient understanding to make the proposed application. Section 14D(5) is the provision that gives the order its stability: the court may not grant permission to a parent, a step-parent with parental responsibility or a former guardian unless it is satisfied that there has been a significant change in circumstances since the special guardianship order was made.

That threshold is what makes special guardianship more secure than a child arrangements order. It does not make the order permanent, and it should never be described as though it does.

Realistic timescales.

The three months under s.14A(7) run before the application is issued, and the local authority's investigation and report under s.14A(8) take further time after that. A grandparent should plan for a process measured in months rather than weeks, and should start the notice period as soon as the decision to apply is made. Section 1(2) and s.11(1) push the court to timetable the case without delay once it is issued, but neither shortens the statutory notice period and neither can shorten a local authority assessment.

What the law does not do here. It does not give a grandparent an emergency route. Because of s.14A(7), a special guardianship order cannot be the answer where a child needs to be somewhere safe this week; a child arrangements order under s.8 can be applied for far more quickly, and a special guardianship application can follow. It does not give the parents' agreement any decisive weight - s.1(1) makes welfare paramount, and s.14A(11) still requires the report. And it does not promise the order will be made: the court's power under s.14A(3) is a power, not a duty.

We assisted the grandparent to consider the available legal routes and whether they could apply without first seeking the court’s permission. We advised on the requirement to give written notice of the intended application to the appropriate local authority and on the importance of allowing time for the statutory assessment and report.

We supported the grandparent in preparing for the assessment by helping them present a clear account of the child’s day-to-day care, the stability of the proposed arrangements, the family support available and the child-focused proposals for future contact. We also advised on the issues the court must consider alongside an SGO, including whether a child arrangements order dealing with contact should be made or varied.

The focus throughout was on the child’s welfare, the practical security of the proposed care arrangement and arrangements that maintained appropriate family relationships. No application was made for a change of surname or for advance permission to remove the child from the United Kingdom.

The outcome

The orders a court can make on an application of this kind, and what governs the choice between them:

- A special guardianship order under Children Act 1989 s.14A, appointing the grandparent as special guardian, either alone or jointly with another individual under s.14A(3). The court can also make one of its own motion in family proceedings under s.14A(6)(b) even where no application has been made.
- A special guardianship order together with a child arrangements order containing child arrangements provisions for contact, if the court considers that an additional order is necessary and appropriate for the child. Before making an SGO, section 14B(1)(a) requires the court to consider whether a child arrangements order should also be made in respect of contact.
- Leave under section 14B(2), given when the SGO is made, to permit a change of surname or removal from the United Kingdom generally or for specified purposes. Such leave may avoid the need for a later application, but it will only be granted where it is consistent with the child’s welfare.
- A child arrangements order under section 8 instead, naming the grandparent as a person with whom the child is to live. It gives that person parental responsibility for the duration of the order, so far as it provides for the child to live with them. It does not create the same special-guardian status or the permission threshold in section 14D(5) that applies to certain applications to discharge an SGO. Whether it is the right order depends on the child’s welfare and the facts of the individual case.
- No order at all, under the s.1(5) principle, where the court concludes that making an order would not be better for the child than making none.
- Refusal of permission, where permission was needed under s.14A(3)(b) and the court, applying s.10(9) as imported by s.14A(12), declines to grant it. The substantive application is then never reached.
- An order the court is not yet able to make, because s.14A(11) prevents it making a special guardianship order until it has received a report dealing with the s.14A(8) matters.

The choice between these is a welfare decision under s.1(1), taken with the s.1(3) checklist and the s.1(5) no-order principle, and with the full range of the court's powers in mind under s.1(3)(g).

The court made a special guardianship order in favour of the grandparent. This gave the grandparent the authority to make the child’s day-to-day upbringing decisions while preserving the parents’ legal status and parental responsibility.

The order reflected the court’s assessment of the child’s welfare on the evidence available in that individual case. Every case turns on its own facts, evidence and welfare considerations; this outcome is not a prediction or promise about any other family’s circumstances.