Understanding Special Guardianship Orders

What is a Special Guardianship Order?

Special Guardianship Orders provide children with a stable and secure home when they are unable to remain in the care of their parents. They are most commonly used to allow a child to be raised by a relative or another trusted individual instead of long-term foster care, adoption and Child Arrangement Orders.

A Special Guardianship Order offers a unique balance between stability and maintaining family relationships. Unlike adoption, Special Guardianship Orders do not sever the child’s legal relationship with their parents. The allows important family ties to be maintained. However, they also provide a greater degree of stability than a Child Arrangements Order.  This is due to the parent of the child is not able to apply to discharge the order without first obtaining permission of the court.

Special Guardianship Orders offer a valuable sense of permanence and continuity for children. However, they also place significant legal responsibilities on the special guardian. Before applying, it is important to understand the legal implications, long-term responsibilities and court process involved.

In this guide, we explain what a Special Guardianship Order is, who can apply, how parental responsibility works and the key factors to consider before making an application.

Special Guardianship Orders and Parental Responsibility:

A key feature of a Special Guardianship Order is the allocation of parental responsibility.  When the court makes the order, the special guardian acquires parental responsibility for the child until they reach the age of 18. Unless the order is discharged earlier.

As defined under Section 3(1) of the Children Act 1989, parental responsibility is;

‘all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property’.

Subject to any other Children Act 1989 orders, the special guardian can usually exercise parental responsibility without needing permission from other people who also hold parental responsibility, except another special guardian.

This enables the special guardian to make day-to-day decisions about the child’s upbringing, including their education, healthcare and general welfare. Having clear decision-making authority helps avoid unnecessary delays and provides the child with greater stability.

One example of this could be schooling. If the child’s parent objects to a particular school, the special guardian can usually make the final decision. Therefore, allowing education arrangements to be put in place quickly.

However, unlike adoption, a Special Guardianship Order does not remove the parents’ parental responsibility. Parents remain legally recognised as parents, even though the special guardian can usually make most day-to-day decisions.

Therefore, it is essential to note the following:

1. When the law requires the consent of all persons with parental responsibility. For example, in relation to sterilisation, a special guardian cannot make this decision to the exclusion of the child’s parents.
2. A Special Guardianship Order does not affect the rights that a parent has in relation to their child’s adoption or adoption placement.
3. There is a requirement that there must be the written consent of each individual with parental responsibility or the leave of the court. Prior to the child being known by a new surname or being removed from the United Kingdom for a period of longer than three months.
4. If there is an Adoption Placement Order in force, the adoption agency may restrict the special guardian’s parental responsibility.
5. When a Care Order is subsequently made, the local authority have the ability to determine the extent that a special guardian may exercise their parental responsibility.

Applying for a Special Guardianship Order

An application for a Special Guardianship Order may be made by an individual that meets one of the following criteria without the leave of the court:

1. A guardian of the child.
2. An individual named in a Child Arrangements Order as a person that the child is living with.
3. An individual the child has lived with for a period of three years out of the last five. It is important to note that these three years do not have to be a continuous period of time. However, they must not have begun more than five years before the application or ended more than three months before the application was made.
4. A local authority foster parent who the child has lived with for at least one year immediately proceeding the application.
5. A relative who the child has lived with for at least one year immediately preceding the application. In these circumstances, a relative is defined as being a grandparent, brother, sister, aunt, uncle or stepparent.
6. An individual who has the consent of everyone the child is named as living with under a Child Arrangements Order.
7. An individual who has the consent of the local authority if the child is in care.
8. An individual who has the consent of those with parental responsibility over the child.

Those who do not meet the criteria above are not prohibited from making an application for a Special Guardianship Order; however, prior to doing so they must seek the permission of the court.

However, in all instances prior to the application for a Special Guardianship Order being submitted, three months notice must be given to the local authority to enable a Special Guardianship Report to be prepared.

This report will consider the following:

1. The proposed special guardian’s suitability.
2. Detailed background information of the child, the family and the proposed special guardian.
3. Any harm the child has suffered.
4. Any risk of harm to the child posed by their parents, relatives or any person considered relevant, such as the child’s parent’s new partner.
5. An assessment of the child’s wishes and feelings taking into consideration their age and understanding.
6. The views of the child’s parents in relation to the application, the child’s religious and cultural upbringing and contact with their relatives.
7. A recommendation on contact between the child and their parents.
8. The implications for the child, parents and proposed special guardian should a Special Guardianship Order be made.
9. The merits of making a Special Guardianship order in comparison to another order. This could be made under the Children Act 1989 or the Adoption and Children Act 2002. Or whether a Special Guardianship Order will meet the child’s long-term needs.
10. A recommendation as to whether a Special Guardianship Order should be made or alternative suggestions.

Following the three-month notice period and the completion of the Special Guardianship Report by the local authority, an application for a Special Guardianship Order can be made to the court. At Blanchards Law, we can guide you through each stage of the process, helping you to navigate the legal and practical considerations involved when applying for a Special Guardianship Order.

Key things to consider before applying for a Special Guardianship Order

A Special Guardianship Order can provide a child with the stability and security required to allow them to thrive. However, it is important to carefully consider the long-term implications before submitting an application.

Firstly, becoming a special guardian is a significant commitment. The order is intended to provide a child with a permanent home until they reach adulthood. Special Guardians are therefore expected to take primary responsibility for the child’s day-to-day care, welfare, education and upbringing.

It is also important to consider the ongoing relationship between the child and their parents. Unlike adoption, a Special Guardianship Order does not extinguish the parental responsibility of the child’s parents. Whilst a special guardian is usually allowed to exercise their parental responsibility to the exclusion of others, there may still be circumstances when consultation with the child’s parents is required. Therefore, consideration should be given to how any future communication could be managed and the relationship could be maintained. However, this continued involvement is not necessarily a disadvantage. Preserving the child’s legal and family ties can help maintain their sense of identity and promote continuity. It can also allow the child to benefit from the stable and secure care provided by the special guardian.

Finally, the court’s paramount consideration will always be the welfare of the child. Before applying for a Special Guardianship Order consideration should be given to whether it is the most appropriate order. Where it would meet the child’s needs or if an alternative order, such as a Child Arrangements Order, may be more suitable.

How Blanchards Law can help

Applying for a Special Guardianship Order can be a complex process.

This is particularly when where there are;

1. 1) concerns regarding a child’s welfare,
2. 2) disagreements between family members
3. 3) uncertainty as to whether a Special Guardianship Order if the most appropriate option.

At Blanchards Law, our experienced family law team can provide clear and practical advice throughout every stage of the process.

It is also important to note that a Special Guardianship Order does not automatically allow the child to benefit on the intestate death of a special guardian. If you are considering becoming a special guardian and wish to make provision for the child upon your death, this should be addressed within your will. Our Private Client team can advise you further in relation to this.

Are you considering applying for a Special Guardianship Order? Contact a member of the team today to discuss your circumstances and receive guidance on your next steps.