Understanding Special Guardianship Orders

What is a Special Guardianship Order?

Special Guardianship Orders are created with the intention of providing children with a stable and secure home when they are unable to remain in the care of their parents. They are most commonly implemented to allow a child to be raised by a relative or another trusted individual and as an alternative to long-term foster care, adoption and Child Arrangement Orders due to the unique balance they strike between stability and maintaining family connection. Unlike adoption, Special Guardianship Orders do not sever the child’s legal relationship with their parents, allowing important family ties to be maintained. However, they also provide a greater degree of stability than a Child Arrangements Order, as the parent of the child is not able to apply to discharge the order without first obtaining permission of the court.

Although Special Guardianship Orders do offer a valuable sense of permanence and continuity for children, they also place significant legal duties and responsibilities on those who take on the role of the special guardian, and it is therefore important to fully understand the implications involved.

This blog explores the purpose of a Special Guardianship Order, who may be eligible to apply, and the key factors that should be considered before making an application to the court.

Special Guardianship Orders and Parental Responsibility:

A key feature of a Special Guardianship Order is the allocation of parental responsibility.  When the order is made, the special guardian acquires parental responsibility for the child until they reach the age of 18, unless the order is discharged prior to this. 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 order in force relating to the child under the Children Act 1989, the special guardian can exercise this parental responsibility to the exclusion of any other individual that holds parental responsibility for the child, excluding other special guardians.  This allows the special guardian to make day-to-day decisions concerning the child’s upbringing, in relation to matters such as their care and education. By having the authority to take the lead on these decisions, the special guardian is able to respond effectively to the child’s needs and provide stable and consistent care without unnecessary delay. For example, if a special guardian wished to enrol the child in a particular school that the child’s parent objected to, the special guardian would be able to make that decision independently, enabling arrangements for the child’s education to be made in a timely manner.

However, as previously explained, a Special Guardianship Order, unlike adoption, does not sever the child’s legal ties with their birth parents meaning that although in some instances special guardians can make autonomous decisions in relation to the child, the parents of the child retain their parental responsibility.

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 which could be made under the Children Act 1989 or the Adoption and Children Act 2002 and 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, and 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, whilst allowing 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 to meet the child’s needs or whether 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, particularly where there are concerns regarding a child’s welfare, disagreements between family members or uncertainty as to whether a Special Guardianship Order if the most appropriate option. Here 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.