Applications for Special Guardianship Orders

Special Guardianship offers an option for children needing permanent care outside their birth family. It can offer greater security without absolute severance from the birth family as in adoption.

It can meet the needs of a significant group of children, mainly older, who need a sense of stability and security but who do not wish to make the absolute legal break with their birth family that is associated with adoption.

It also provides an alternative for achieving permanence in families where adoption, for cultural or religious reasons, is not an option.

A Special Guardianship Order offers greater stability and legal security to a placement than a Child Arrangements Order.

Children subject to a Special Guardianship Order are eligible as previously Looked After Children for additional support with their education (Sections 20(4) and 20A(4) of the Children and Young Persons Act 2008). For further information, please see the Supporting the Education and Promoting the Achievement of Children with a Social Worker, Looked After and Previously Looked After Children Procedure.

Special Guardians have Parental Responsibility for the child and, whilst this is shared with the child's parents, the Special Guardian has the ability to exercise this responsibility without seeking permission from the parents.

A Special Guardianship Order made with respect to a child who is the subject of a Care Order or for an order for contact to a child in care discharges those orders.

A Care Order, however, does not automatically revoke a Special Guardianship Order although the Special Guardian's exercise of Parental Responsibility is restricted as the local authority has primary responsibility for decision-making under the Care Order.

For further details about Special Guardianship as a permanence option for Looked After Children, see Permanence Planning Guidance.

People thinking about becoming special guardians will be provided with clear, user-friendly information to help them make informed choices. This should include information on support available and how this is reviewed.

Where an assessment identifies the need for ongoing support services, a Special Guardianship Support Plan must be completed. This Plan should be based upon the lived experience of the child and the lived experience of the prospective Special Guardian.

Other agencies, such as education and health, may need to be consulted about the contents of the Plan.

As a previously looked after child, the child subject to a Special Guardianship Order will be entitled to additional education support. This will be accessed through the designated teacher in the child's school. For further information, please see Supporting the Education and Promoting the Achievement of Children with a Social Worker, Looked After and Previously Looked After Children Procedure.

From 1 September 2021, the School Admissions Code provides that children being raised by family and friends carers under a Special Guardianship Order or Child Arrangements Order, who struggle to get a school place during the year, will be supported in finding one.

The Plan should be written in such a way that everyone affected can understand and set out:

1. The services to be provided;
2. The objectives and criteria for success;
3. Timescales for provision;
4. Procedures for review;
5. A named person to monitor the provision of services in accordance with the Plan;
6. Contact Arrangements between the child and parent(s) which should include - Type of contact, frequency and duration, who is responsible for making the arrangements of contact, what practical arrangements need to be provided to facilitate contact and what professional support and assistance, if any, will be provided to the special guardian;
7. Any harm that the child may have suffered and the capacity of the prospective Special Guardian to enable the child’s developmental recovery from that harm.

Special Guardianship Support will be subject to the approval of the Designated Manager (Special Guardianship Support).

Once the necessary approval has been obtained, the social worker must send the proposed plan to the person requesting support, and allow 28 days for that person to make representations about the proposed plan. The social worker should also give information to the person concerned about who to contact to obtain independent advice and advocacy.

Where representations are received, they should be referred to the Designated Manager (Special Guardianship Support) to decide whether to amend or confirm the Plan. The allocated social worker must then write to the person concerned setting out the final Plan. A final notice of the authority's decision must then be given to include the following:

1. Details of the plan and the name of the person nominated to monitor the provision of services;
2. Where financial support is to be provided:
   1. The method of determination of the amount of financial support;
   2. The amount, frequency, start date and period of any payment in instalments;
   3. When any single payment is to be made;
   4. Details of any conditions and the date by which those conditions are to be met;
   5. The arrangements and procedure for review, variation and termination of financial support;
   6. The responsibility of the authority in relation to reviews and of the Special Guardian in respect of any conditions.

Special Guardianship Support Services (other than financial support payable periodically) must be reviewed:

• If there is any change of circumstances affecting the support;
• At such stage of the implementation of the plan as is considered most appropriate;
• In any event at least annually.

Where services are being reviewed the same procedure for assessment must be followed as in a first assessment.

If a local authority proposes to vary or terminate the provision of special guardianship support services to any person, before making any decision as a result of the review, it must give the person an opportunity to make representations and for that purpose it must give notice of the proposed decision and the time allowed for making representations. This notice must contain the same information as the notification of the outcome of a first assessment (see Section 12, The Special Guardianship Support Plan) including a draft of the revised plan.

Any change to the Special Guardianship Support Plan will be subject to the approval of the Designated Manager (Special Guardianship Support). Local arrangements will determine whether any additional approval is required for changes to financial support.

If the local authority decides to vary or terminate the provision of support after the review, notice in writing must be given.

The format and content of the review will vary depending on the circumstances of the case. Notification of changes of circumstances and any review of the provision of support services need not always necessitate direct contact between the local authority and the special guardian. Where the change of circumstances is relatively minor the review might be limited to an exchange of correspondence. In particular, the annual review of financial support might be achieved by exchange of correspondence between the local authority and the special guardian. Where the change of circumstances is relevant only to one service the review may be carried out with reference only to that service. However, where the change of circumstances is substantial, for example, a serious change in the behaviour of the child, it will normally be appropriate to conduct a new assessment of needs.

Government guidance says that special guardianship arrangements should not fail just because of financial problems. Financial support should be paid to help secure a suitable arrangement where this is not possible because of a financial obstacle.

Each case must be assessed on its own facts. It would not be lawful, for example, to pay a flat rate to all Special Guardians, or a fixed percentage of fostering allowance.

The local authority must take account of any other grant, benefit, allowance or resource available to the person in respect of his needs as a result of becoming a Special Guardian of a child. Financial support cannot duplicate any other payment available to the Special Guardian.

Special Guardians must be helped to access any benefits to which they are entitled; this will usually include child benefit and tax credits.

The Special Guardian's means will normally be considered when ongoing financial support is being considered. They should therefore be asked to complete a Financial Assessment Form, which, when completed, should be passed to the Finance Officer responsible for carrying out means assessments.

Once the means assessment has been carried out, the Finance Officer should send written notification of the outcome to the relevant social worker, who must present this to the Designated Manager (Special Guardianship Support) for approval.

The social worker should then write to the Special Guardian setting out the amount of financial support agreed by the Designated Manager (Special Guardianship Support) and information in relation to the following:

• Whether financial support is to be paid in regular instalments and if so, the frequency of payment;
• The amount of financial support;
• The period for which the financial support is to be paid;
• When payment will commence;
• Conditions for continuing payment and date by which conditions are to be met, i.e. returning Review Forms;
• Arrangements and procedure for review and termination.

A copy of this letter should be sent to the Finance Officer.

Means may be disregarded in relation to:

• The initial costs of accommodating a child who has been Looked After;
• Recurring travel costs in contact arrangements;
• Any special care requiring greater expenditure due to illness, disability, emotional or behavioural difficulties or the consequences of the past abuse or neglect of a child previously looked after;
• Where considering an element of remuneration in financial support payments to ex-foster carers.

Where the Special Guardians were previously the child's foster carers, the local authority can maintain the fostering allowance for a transitional period of 2 years but with discretion to extend if necessary.

The only circumstance when the local authority MUST disregard means is when providing financial support in respect of legal costs, including fees payable to a court in respect of a child who is Looked After where the local authority support the making of the Special Guardianship Order or an application is made to vary or discharge a Special Guardianship Order in respect of that child.

Local authorities are not expected to meet the legal costs of a Special Guardianship Order where they oppose an application in respect of a child they previously looked after or in a non-looked after case. Local authorities may wish to advise prospective special guardians in these circumstances that they may be able to obtain help with legal costs from the Legal Aid Agency.

Where a person has an urgent need of a service, the assessment process should not delay provision and arrangements can be made for support to be provided as a matter of urgency in appropriate cases. The approval of the Designated Manager (Special Guardianship Support) will still be required. The local authority will need to review the provision as soon as possible after the support has been provided in accordance with the procedures set out above.

Identifying potential long-term carers for the child within the family may include those who are either resident in, or nationals in, overseas countries. Special guardianship can be considered in placing a child outside of the jurisdiction. Consideration must be given to how assessments are carried out in a legally compliant and culturally relevant manner. Thought should be given to:

• The status of special guardianship in that country and other legal matters;
• The relevant matters associated with the care of children in that country: permanent, stable and secure family life, safeguarding, education and health, and specifically how all of these relate to the personal living circumstances of the host family and their need for support services, including financial and therapeutic support and contact between family members including those resident in the UK;
• Contacting local agencies in that country for guidance on the support that maybe offered.

In advance of the child being placed, a plan will need to be agreed about how the placement will be supported and what the contingency arrangements are for the child.

Best Practice Guidance: Special Guardianship Orders (Public Law Working Group, 2021) provides that if  the proposed carers appear to be viable, time may be needed for Children and Families Across Borders (CFAB) to carry out an assessment.

Note:

1. Contracting states to the 1996 Hague Convention will be better placed to offer co-operation and support than some other countries (see HCCH);
2. Social workers should carefully explore the local authority's ability to provide financial support particularly after an initial 3 years when 'out-of-area placements' are abroad.

See also: Children and Families Across Borders (CFAB).

If the child with respect to whom a Special Guardianship Order is in force dies, the Special Guardian must take reasonable steps to give notice of that fact to:

• Each parent of the child with Parental Responsibility;
• Each guardian of the child;
• The relevant local authority if the child was previously a looked after child.

The following suggested good practice is taken from the Local Government and Social Care Ombudsman report Firm Foundations: Complaints about Council Support and Advice for Special Guardians (May 2018). 

The following is not an exhaustive list but sets out some of the positive steps councils can take:

• Give early, clear and unambiguous advice to people who are considering becoming special guardians. Consider how this can:
  • Explain what is special guardianship and what this means for parental responsibility, legal security and stability;
  • Explain the council's role and that of the court;
  • Set out who can apply to be a special guardian and what alternatives could be more suitable;
  • Make the process of applying to be a special guardian clear, including the role of the council in writing a report to court;
  • Explain the assessment process before becoming a special guardian. Explain that applicants may need to complete some training.
• Be as clear as possible about the support that might be available and how the council will assess the applicant's support needs;
• Be as unambiguous as possible about the fixed term duration of support and what it is likely to be used for;
• Back up verbal advice and guidance in writing wherever possible, particularly where this may have long term consequences;
• Manage expectations early on, for example where special guardians expect ongoing support or help with major personal expenditure;
• Be as clear as possible with applicants that any support may be time limited;
• Develop advice for social workers involved in supporting potential and actual special guardians. This could include:
  • A flow chart showing responsibilities at key stages such as suitability assessment, financial assessment, permanence panel and court;
  • A checklist of things to cover at first assessment visit (for example explaining the process and financial situation);
  • A summary of the SGO assessment process including child information (for example attachment issues and any early neglect or trauma), carers information (for example current relationship and stability).
• Keep clear and transparent records of contact with special guardians. This is always important, particularly where guardians will probably be supported by several different social workers and other officers over several years;
• Write support plans that are clear, in plain English and set actions that are as specific, measurable and achievable as possible so the council and guardian can review progress;
• Make sure support plans:
  • Are shared, discussed and agreed with special guardians, and this is well documented;
  • Are written so that they are easy to evaluate and keep under review. It should be easy for the council and guardian to decide whether all the support has been provided;
  • Are regularly reviewed and kept up to date. Make sure plans continue to meet the child's needs as they change;
  • Set out the approach to calculating special guardianship allowance. Explain this at the earliest stage as possible, making clear this will be reviewed and depend on evidence of continuing needs;
  • Keep the best interests of the child at the forefront of decision making.