What is a Special Guardianship Order?
A Special Guardianship Order (SGO) confers Parental Responsibility (PR) on someone who is to provide permanent long-term care for a child. The purpose of an SGO is to provide stability and security for children who are unable to live with one of their parents and for whom adoption is not a suitable option. The SGO serves to preserve the legal relationship with the child’s natural birth family but the Special Guardian will have the final say on most aspects of the exercise of PR, ahead of the parents.
Special Guardians are for example able to remove a child from the jurisdiction (country) for a period of up to 3 months, without the consent of the parents with PR, but whilst an SGO is in force no one is able to call the child by a new surname or remove them from the United Kingdom without the written consent of everyone who has PR for them or permission from the Court.
An SGO is more secure than a Child Arrangements Order because a parent cannot make an Application to the Court to discharge it without first getting the Court’s permission, however, is it not as secure as an Adoption Order because the legal relationship with the parents remains in place.
Who can apply for Special Guardianship Order?
Parents cannot apply for an SGO. The following people can apply for an SGO:
- Any legal guardian of the child.
- Someone who has the benefit of a Child Arrangements Order – Live with or a Residence Order for a child.
- Anyone with whom the child has lived for at least 3 years out of the last 5 years.
- Anyone with the consent of the Local Authority if the child is in care.
- A Local Authority foster carer with whom the child has lived for at least 1 year preceding the application.
- A relative of the child with whom the child has lived for at least 1 year preceding the application.
- Anyone who has the consent of those with Parental Responsibility for the child.
- Anyone who has obtained permission to do so from the Court.
What is the Local Authority’s involvement?
The relevant Local Authority must be given 3 months’ notice of the application as it is required to complete a comprehensive assessment of the potential Special Guardian(s) which will be included in a detailed Report for the Court to consider.
It will enquire into the family and background of the child, consider any existing contact arrangements, it will consider the wishes and feelings of the child and the parents, it will look at the potential Special Guardian’s family and circumstances and consider their parenting capacity, medical information about the child, their parents and the potential Special Guardian, it will make recommendations about contact and consider the implications of the making of an SGO for all those involved. The Court cannot make an SGO until the Local Authority Report has been completed.
The Local Authority also has an obligation to provide support services for Special Guardians which includes for example: financial assistance (which is means tested), assistance with contact where appropriate, respite care, counselling, advice, support and assistance (where needed) and any required therapeutic services for the child.
What will the Court need to consider?
In the event that the court has to decide issues in relation to a child, the child’s welfare is the paramount consideration. The court must take into account the following factors, referred to as the Welfare Checklist:
The ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);
His physical, emotional and educational needs;
The likely effect on him of any change in his circumstances;
His age, sex, background and any characteristics of his which the court considers relevant;
Any harm which he has suffered or is at risk of suffering;
How capable each of his parents, and any other person who the court considers the question to be relevant, is of meeting his needs and
The range of powers available to the court Essentially the court needs to decide what is in the child/children’s best interests. It will also consider whether it is better to make an Order than not to do so. (This is called the No Order Principle).
What about Contact?
In cases where Special Guardianship Orders are made, Contact between a child and their parents and other key family members, where this is considered to be in the child’s best interests, may continue to enable the child to maintain a sense of their identity and therefore whilst it may be appropriate for that to take place regularly, the frequency will be fixed at a level which enables the child to settle and feel secure with their Special Guardians. Where there are a number of family members who may be offered Contact, this also needs to be taken into account when considering how frequently Contact should take place to minimise disruption to the child’s routines.