The Adoption & Children Act 2002 amends the Children Act 1989 to provide for a new Order, Special Guardianship. Special Guardianship Orders (SGOs) are intended to meet the needs of children who cannot live with their birth parents but for whom adoption is not appropriate. The Prime Minister’s Review of Adoption in 2000 identified the need for an alternative legal status for children, which offered greater security than long term fostering but without the absolute legal severance from the birth family that stems from an Adoption Order. The SGO is intended to offer more than a Residence Order in terms of the security it brings and the support services that may be made available to the child and Special Guardians. The full implementation of the Adoption & Children Act 2002, including the provisions for Special Guardianship, came into force on 30th December 2005.
It is an order which should be of particular relevance to foster carers offering a permanent home to a child where adoption is not a suitable plan. It can be a very positive outcome for children in settled long term placements as it provides security for them and reinforces the commitment the foster carer has made to them as a permanent member of their family. If a Special Guardianship Order is made the child is no longer ‘looked after ‘and the carers have parental responsibility for the child or young person. However the local authority still has responsibility to provide special guardianship support services so that a range of support services including financial support will be available to support such placements.
A Special Guardianship Order confers parental responsibility on the Special Guardian to the exclusion of any others with parental responsibility. The Special Guardian has responsibility for all the day-to-day decisions in relation to that child. The aim is to provide legal stability for the child whilst the parents remain the child’s legal birth parents. The Special Guardian can make all the decisions for that child except:
- Where the law requires the consent of more than one person with parental responsibility i.e. sterilisation
- Agreement to adoption
- Removal of the child from the U.K. for more than 3 months without leave of the court
- Change the child’s name without the leave of the court.
The Special Guardianship Order remains in force until the child is 18 years old and should provide for a strong foundation for a lifelong relationship between the child and the Special Guardian. However, Special Guardianship Orders can be varied or discharged on the application of the Special Guardian, the local authority in whose name a Care Order was in force with respect to the child before the Special Guardianship Order was made, anyone with a Residence Order for the child before the Special Guardianship Order was made and, with leave of the court, the child’s parents or guardians, any step parent who has parental responsibility or had it immediately before the Special Guardianship Order was made, and the child. The court will only grant leave if there has been a significant change in circumstances since the Order was made.
The legal framework
Most applications will be private law applications but the court may also make a Special Guardianship Order in any family proceedings concerning the welfare of the child if they consider an Order should be made. This applies even where no application has been made and includes adoption proceedings.
When considering whether to make a Special Guardianship Order the welfare of the child will be the court’s paramount consideration and the welfare checklist in Section 1 of the Children Act 1989 is applied.
Applications can be made individually or jointly by 2 or more people, and applicants have to be over 18 years old. The parent of a child cannot become a Special Guardian. The court may make a Special Guardianship Order in respect of the child on application from:
- Any guardian of the child
- A foster carer with whom the child has lived for 1 year immediately preceding the application
- Anyone who holds a Residence Order or who has the consent of all those with a Residence Order
- Anyone with whom the child has lived for 3 years out of the last 5 years
- Where the child is in the care of the local authority, anyone who has the consent of the local authority
- Anyone with consent of all those with parental responsibility
- Anyone else including the child with leave of the court.
Before making a Special Guardianship Order the court must consider whether to vary or discharge any Section 8 Order, this could include contact or a Residence Order. The court should also consider whether or not a contact Order should be made at the same time as the Special Guardianship Order.
Any person who wishes to apply for a Special Guardianship Order must give 3 months’ written notice to the local authority. On receipt of such a notice, or if the court makes a request, the local authority must investigate and prepare a report to the court about the suitability of the applicants. The court should not make an Order unless it has received such a report. The reports will need to include details of any Special Guardianship support services that will be provided to the family.
Applications in respect of looked after children
For most looked after children in Brighton & Hove the decision for foster carers to apply to become Special Guardians would have been made at the LAC review and foster carers should discuss such a plan fully with their supervising social worker and worker for the child. The preparation of the Special Guardianship report will need to be undertaken jointly by the social worker for the child and the supervising social worker for the foster carers.
A meeting should be convened by the fieldwork Team Manager or Practice Manager to plan for the preparation of the report and consider the Special Guardianship support plan. There is a format for the Special Guardianship support plan, which is similar to that completed in relation to adoption support. It is important that foster carers are fully in agreement with the proposed special guardianship support plan.
If the plan for special guardianship is supported by the local authority, foster carers will be supported financially with the cost of the application and potential legal fees. It will be important to ensure that carers have full information about Special Guardianship and are supported through their application process. It is the responsibility of the social worker for the child to discuss such a plan with the birth parents and advise them fully about special guardianship and the need to access legal advice. There is a leaflet available from the local authority for birth parents which includes information about options for children who cannot live with their birth parents.
Special Guardianship support services
The legislation in respect of Special Guardianship also requires the local authority to make provision for Special Guardianship support services. These are defined as:
- Financial support
- Services to enable Special Guardians, children subject to SGOs or parents of children subject to SGOs to meet to discuss issues relating to Special Guardianship
- Assistance including mediation in relation to contact
- Therapeutic services for the child
- Support services for the Special Guardian including training
- Counselling, advice and information.
The guidance states that Special Guardianship support services should not be seen in isolation from mainstream services and these families and should be supported and encouraged to access these services or claim any state benefits that they may be entitled to.
Eligibility for leaving care services
Children who were looked after immediately prior to becoming subject to a Special Guardianship Order will also still be eligible for leaving care services in that they will qualify for advice and assistance under section 24(1) of the Children Act 1989, as amended by the Children (Leaving Care) Act 2000 and the Adoption & Children Act 2002. This is providing that the child:
- Has reached the age of 16 but not the age of 21
- If less than eighteen years old, has a Special Guardianship Order in force.
- If eighteen years old or above, had a Special Guardianship Order in force when they reached that age, and
- Had been looked after by a local authority immediately before the making of the Special Guardianship Order.
Special Guardianship Support Plan
A Special Guardianship Support Plan will need to be considered and drawn up for all children who are looked after and subject to a Special Guardianship Order application. It will be important to ensure that there is no financial disincentive to foster carers where they are supported by the local authority going on to offer a secure placement to the child in their care via Special Guardianship.
Regulation 11 provides that the following people must receive an assessment at their request for situations where the child involved is currently looked after or was looked after immediately prior to the making of a Special Guardianship Order:
- The child
- The Special Guardian or prospective Special Guardian
- The parent.
The process involved in drawing up a Special Guardianship support plan is similar to that involved with an adoption support plan. The Special Guardianship support plan document mirrors the adoption support plan and will need to be completed with the prospective Special Guardians providing written confirmation to Children and Families that they accept the plan prior to the court hearing in respect of their application. The regulations suggest that a period of up to 28 days should be provided to the prospective Special Guardians to make any representation in relation to the plan. Details of sources of independent advice and advocacy should also be provided to the Special Guardianship with the plan. The plan will detail the outcome of the assessment, the services to be provided, the time-scales for the provision of the services and the procedure for review. It will be essential to identify within the plan who will be the named worker to monitor the provision of the services as detailed in the plan.
The prospective Special Guardians will need to complete a financial assessment in the same way that prospective adopters do in relation to an adoption allowance or those applying for a Residence Order allowance. The social worker for the child or foster carer will need to liaise with the Team Manager for the Adoption & Permanence team as the budget holder for the Special Guardianship Allowance Budget and she will confirm the allowance to be paid. The rates for Special Guardianship allowances in relation to children who were looked after will reflect the foster care allowance. Special Guardians will also be entitled to claim Child Benefit when the child is no longer looked after.
There may be circumstances that would also warrant a single payment to support a placement, and agreement to such a payment needs to be made by the budget holder. The plan needs to detail the basis upon which financial support is determined, whether the financial support will be paid in the form of a regular allowance, how much the financial support will be and for what period it covers.
The Special Guardian will need to complete a financial statement on an annual basis and agree to inform Children and Families immediately if she/he changes her address or the child dies or there are any changes in the circumstances of the child as laid out in the Special Guardianship regulations.
Other support services
The plan highlights the key dimensions to consider in relation to the child and their Special Guardians using the sections of the Common Assessment Framework used for most social work assessments. It will need to focus on, for example, support in relation to any health or educational needs the child may have as well as on support in relation to contact arrangements. It will be important to consider at that stage who will continue to have responsibility for the support and supervision of future contact arrangements and this may need to remain the responsibility of the appropriate fieldwork team and like the rest of the plan will need to be kept under regular review. The plan will also need to detail the ongoing support that will be made available from Children and Families. This could include the continued provision of a social worker to support the placement, access to support groups and training services from the Fostering & Adoption service.
It will be necessary to liase with the appropriate health or education services during the assessment of the need for support services as the plan may need to contain details of services provided by bodies other than Children and Families. Children who were looked after by Brighton & Hove who go on to be subject to Special Guardianship will continue to receive priority for access to specialist services as appropriate from the LAC team at the Child & Adolescent Mental Health Services (CAMHS). The support plan will need to include any specific services being provided to the parent of a child subject to Special Guardianship.
Reviews of Special Guardianship Support Plan
Financial allowances will be reviewed annually unless there is any relevant change in circumstances sooner or if support plan specifically identifies an alternative review date. The annual review will be triggered by the Finance section sending out the annual financial statement. The Team Manager for the Adoption & Permanence team will maintain oversight of all the Special Guardianship support payments. The recipients of the SG allowance must notify financial services if their circumstances change at any time.
The local authority is required to regularly review the Special Guardianship support plan. This should take place at least annually or more frequently if there is a change in the person’s circumstances. Any change to the plan must be notified in writing to the Special Guardian who is given opportunity to make any representations about the change to the plan. The Service Manager for the team with the named key worker for the plan must ensure that the review of the plan takes place. Reviews would normally be chaired by the appropriate Practice Manager for the named key worker within the plan, i.e. usually a Practice Manager from within the Fostering & Adoption service.
The manager chairing the review will ensure that the review of the plan and any subsequent changes are sent out in a timely manner and any representations about the plan passed on to the appropriate Team or Servoce Manager to consider.
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