The Children Act 2002 introduced a new legal status for non-parents who are caring for or wish to care for children in a long term, secure placement whilst preserving the legal link with the child’s natural birth parents. A Special Guardianship Order (SGO) is an order of the court under the Children Act 1989 which grants the holder(s) parental responsibility over a child until they reach the age of 18. This enables the special guardian(s) to make day-to-day decisions on behalf of the child, for example in relation to their education.
The making of a Special Guardianship Order does not extinguish the parental responsibility of the birth parents; however, the special guardian is only required to consult with them in exceptional circumstances. This enables the special guardian to make unilateral decisions in relation to issues such as medical treatment and choice of religion. There are a number of important decisions that a special guardian cannot make without consultation, namely;
- Changing the child’s surname
- Placing the child for adoption
- Granting parental responsibility to a father or step parent
- Granting the child permission to marry
- Consenting to the child being sterilised
An SGO may be sought in relation to both looked after children i.e. those under the care of the Local Authority and non-looked after children; for example, those children in the care of relatives. Special guardianship status is best described as a halfway house between residence and adoption orders in respect of the level of responsibility given to the non-parent carer and the perception of the permanency of the placement; something of particular importance to the child. Foster carers may have provided permanent placements to children and may wish to continue to do so without the direct involvement of the Local Authority. This may positively benefit the child as they will grow up outside of the care system.
Following the making of an SGO Local Authority foster carers, who previously received remuneration for their work, cannot continue to receive remuneration beyond a 2 year period. The allowance is means tested and based on the amount of disposable income available. The allowance is generally paid on an ‘on-going’ basis, for example weekly, but is available as a one off lump sum or series of lump sum payments. The special guardianship allowance is to be in line with fostering allowances to ensure that the special guardian will not be financially penalised when an SGO is made. The allowance is not subject to income tax as of 1st April 2010. The basic recommendations are set out below although the exact figure may vary depending on the Local Authority concerned:
|Age of Child||Care Payment (per week) £||Additional fee element [also incorporating holiday, birthday and religious events costs] (per week) £||Total (per week) £|
The Local Authority may also provide some assistance with your legal costs, although they are not obliged to do so. It is worth raising the issue with the social worker assigned to the case.
The SGO Application
An SGO can be made in favour of more than one person and joint applicants do not have to be married. The special guardian must be aged over 18 and must not be the parent of the child concerned. The following persons are entitled to apply for a SGO:
- any guardian of the child;
- any person in whose favour a residence order is in force;
- a local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application;
- any person with whom the child has lived for a period of at least 3 out of the last 5 years;
- any person who has obtained consent from:
- those with a Residence Order in their favour in respect of the child concerned;
- the local authority, when the child is looked after; or
- if the child is not looked after, persons with parental responsibility.
All other persons require permission of the court to make an application for an SGO (s 14A(3)(b)). It is essential that the Local Authority concerned are given at least three months written notice of an individual’s intention to apply for an SGO in accordance with s14(A)(7). The Local Authority’s duty to investigate is then engaged and a report must be prepared. If the child is not looked after, the notice will be required to be sent to the Local Authority within which the child normally resides. Once the Local Authority have received notice of intention to apply; they must respond and inform you of any assistance that is available; whether that be financial assistance, help with arranging contact with persons who have an existing relationship with the child or information regarding respite care, mediation and training. The court must have regard to the welfare checklist set out in s1 of the CA 1989 when deciding if an SGO should be made. The interests of the child will be the court’s paramount consideration.
Effects of a SGO
As noted earlier, under an SGO the special guardian acquires parental responsibility for the child concerned. The parental responsibility is shared with other holders such as the natural birth parents and upon the making of the SGO, the parental responsibility of the birth parents is not extinguished, it is merely limited to more serious decisions. However, the special guardian is able to exercise parental responsibility to the exclusion of others, the exception being to the exclusion of another special guardian. Thus, a special guardian is able to make day to day decisions without issue. This is of particular assistance where other holders of parental responsibility are considered to frequently withhold their consent without good cause, which is likely to disrupt a placement. A special guardian is also entitled to appoint a guardian for the child concerned in the event of their death, providing further stability. Currently a non-parent with a residence order in their favour is unable to do this. Contact with Birth Parents Birth parents are able to apply for a contact order when an SGO is being made and anytime thereafter; as is the case when a residence order is in force. When deciding whether to make an SGO, the court will always consider the question of contact and the report prepared by the Local Authority, as a result of their duty to investigate, will be expected to cover this issue in detail. There is a duty to promoted contact between a child and birth parents if it is considered that such contact would be in the best interests of the child. In contrast, although contact is something that is considered in adoption cases; the court would be unlikely to make an order for contact without the full support of the adoptive parents.
Duration of an SGO
An SGO remains in place until the child concerned reaches 18 years of age, whereas an adoption order is life long and will remain in place unless the child is adopted by another or the order is set aside in very exceptional circumstances. Unlike a residence order, an SGO will not automatically come to an end upon the making of a subsequent care order; thus demonstrating the weight and stability attributed to an SGO. This leaves the door open for the child to be returned to the special guardian at some point in the future should the need arise. The making of an SGO will automatically bring a care order to an end; enabling the child to attain stability and permanence in their placement and helping to address the potential stigma of being a cared for child.
Discharge and variation of an SGO
The Local Authority is able to make an application to the court to vary or discharge the SGO if deemed appropriate. A parent, including a step parent who holds parental responsibility, guardian or other holder of parental responsibility and the child subject of an SGO may apply to the court to vary or discharge an SGO provided they first obtain the permission of the court. It will be necessary to demonstrate that there has been a dramatic change in circumstances in order to proceed with the application and the court must have regard to the welfare checklist, ensuring that the interests of the child are carefully considered. In contrast to an SGO and a residence order, an adoption order cannot be revoked, reflecting the permanence of the measure.