Special guardianship is a legal option intended to provide permanence for children for whom adoption is not appropriate. It was introduced in the Adoption and Children Act 2002.
A special guardianship order (SGO) gives the special guardian parental responsibility for the child. Unlike adoption, under a SGO the parents remain the child’s parents and retain parental responsibility, though their ability to exercise their parental responsibility is extremely limited.
The intention is that the special guardian will have clear responsibility for all the day-to-day decisions about caring for the child or young person and for taking any other decisions about their upbringing, for example their education. A special guardian may exercise parental responsibility to the exclusion of others with parental responsibility, such as the birth parents, and without needing to consult them in all but a few circumstances.
A special guardianship order will:
- Give the carer clear responsibility for all aspects of caring for the child or young person, and for taking decisions to do with their upbringing
- Provide a firm foundation on which to build a lifelong permanent relationship between the carer and the child or young person
- Preserve the basic legal link between the child or young person and their birth family
- Be accompanied by proper access to a full range of support services including, where appropriate, financial support
An SGO is flexible and can work in a variety of situations:
- For older children who do not wish to be legally separated from their birth family, but could benefit from greater legal security and permanence
- For children in long-term foster care or those who are cared for on a permanent basis by members of their wider family
- For children and carers who have cultural and religious difficulties with adoption as set out in law
Any decision about special guardianship must be viewed in the light of the welfare checklist in Section 1 of the Children Act 1989. In addition there are Special Guardianship Regulations 2005 which set out further provisions, particularly in relation to special guardianship support services and the report to the court. There is also a summary at the beginning of the Special Guardianship guidance (paragraphs 1-21), based on the Act, and regulations. The Act, regulations and statutory guidance need to be read together in order to fully understand the new system.
Any decision to apply for a Special Guardianship Order should clearly always be based on meeting the needs of the child or young person, but there are particular situations where it might be more appropriate:
- Older children and young people in long-term care, as described above, who may wish to retain some legal ties with their birth family and who do not want to be adopted
- Unaccompanied asylum-seeking children who need a secure, permanent home here, but have strong attachments to their family abroad
- Prospective carers from minority ethnic groups who may wish to offer a child a permanent family, but have religious or cultural difficulties with adoption as it is set out in law
- Kinship care, where members of the extended family may not want to adopt the child, but do need more security and clarity about day-to-day decision making
Who can apply to be a Special Guardian?
A court may make a Special Guardianship Order in respect of a child on the application of:
• Any guardian of the child
• A local authority foster carer with whom the child has lived for one year immediately preceding the application
• Anyone who holds a residence order with respect to the child, or who has the consent of all those in whose favour a residence order is in force
• Anyone with whom the child has lived for three out of the last five years
• Where the child is in the care of a 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
• Any person, including the child, who has the leave of the court to apply
All applicants must give their local authority 3 months’ notice in writing that they are going to apply for an order and local authorities are required to produce to the court a report on all children, not just those who are looked after, when an application is made.
This report must include information about the child, the child’s wishes, the child’s birth family, contact arrangements, the prospective special guardian and recommendations about whether or not an order should be made (See the schedule to the relevant regulations for further details). The local authority is expected to start work on this report, or arrange for someone else to do it, as soon as possible after receiving the notice. The court cannot make an order without having received a report. Local authorities are expected to ensure that the social worker who prepares the report is suitably qualified and experienced, but there are no restrictions on who can write the report as there are for adoption.
Before making the Special Guardianship Order a court must consider whether to vary or discharge any other existing order made under Section 8 of the Children Act 1989. The court can also decide to make a Section 8 Contact Order at the same time as the Special Guardianship Order. In all circumstances the court must consider the whole range of options available before making a Special Guardianship Order.
The Adoption and Children Act 2002, and the regulations made under it, require the local authority to make arrangements for the provision of special guardianship support services. These include financial and other support for the Special Guardian, but also services for children and birth families, for example, mediation services to assist contact between the child and their birth family. (See relevant regulations for a full list of these services). These services should be integrated and developed alongside adoption support services and other more general provision for children and families.
In all other situations, including when the 3 year period has expired, responsibility for assessing and providing support services is with the local authority where the special guardian lives.
If a child is not (or was not) looked after by a local authority, then there is no entitlement to an assessment for Special Guardianship support services, but this assessment may be requested.
Any child who was previously looked after by a local authority will cease to be looked after once a Special Guardianship Order is made. A Special Guardian may then exercise parental responsibility to the exclusion of all others with parental responsibility, apart from another special guardian. A Special Guardian can also appoint a guardian in the event of death.
This differs from the holder of a Residence Order who exercises parental responsibility jointly with other people who have parental responsibility (the birth parents for example). However, Special Guardians, unlike adoptive parents, do not have exclusive parental responsibility, they cannot give their consent to change a child’s surname, or live abroad for more than 3 months without the agreement of others with parental responsibility, or the leave of the court. They can also not override a parent’s refusal to consent to the adoption of the child.
By contrast with adoption, where birth parents lose all their parental responsibility, under residence and special guardianship orders they retain the right to consent or not to adoption, and they can also apply for contact with their child through the courts.
Adoption Orders are almost always for life, while Residence Orders last until the child is 16 or 18. Special Guardianship Orders last until 18, but the court is asked to take account of the child’s need for a lifelong relationship with their special guardian at the time the order is made.
Finally, Adoption Orders are irrevocable, but both child arrangement Orders and Special Guardianship Orders can be varied or discharged. However, the thresholds for revoking a Special Guardianship Order are higher, and a parent can only apply for revocation where the court has granted leave for the application because of a significant change in circumstances.