Applications for Special Guardianship Orders

Applications for Special Guardianship may be individual or joint. Joint applicants do not need to be married. Special Guardians must be 18 or over and must not be a parent of the child in question.

Subject to giving notice to the relevant local authority, the following people are entitled to apply for a Special Guardianship Order without needing to first seek the leave of the court:

• Where the child is subject of a Care Order or an Interim Care Order, any person who has the consent of the Local Authority;
• A local authority foster carer who is a relative of the child or with whom the child has lived for one year immediately preceding the application (even if the Local Authority does not consent);
• Any guardian of the child;
• Any person who is named in a Child Arrangements Order as a person with whom the child is to live;
• Anyone who has the consent of each person named in a Child Arrangements Order as a person with whom the child is to live;
• Anyone with whom the child has lived for three out of the last five years providing the child has not ceased to live with the proposed applicant more than 3 months before the making of the application;
• Anyone who has the consent of all those with Parental Responsibility for the child;
• Any other person (including the child and other than a parent) may apply for a Special Guardianship Order if they have obtained the leave of the court to make the application, see Private Law Applications for a Special Guardianship Order.

The parents of a child may not apply to become their own child's Special Guardians.

_{A person who is, or was at any time within the last 6 months, a local authority foster parent of a child may not apply for leave to apply for an Special Guardianship Order unless (s)he has the consent of the local authority, or (s)he is a relative of the child or the child has lived with him for at least one year preceding the application.}

The Special Guardian will have Parental Responsibility for the child and, subject to any other order in force, will have clear responsibility for the day-to-day decisions about caring for the child to the exclusion of anyone else who might have Parental Responsibility (apart from another Special Guardian).

The child's parents will continue to hold Parental Responsibility but their exercise of it will be limited. The parents will, however, retain the right to consent or not to the child's adoption or placement for adoption. The Special Guardian must also take reasonable steps to inform the parents if the child dies (see Section 20, Special Guardian Duty on the Death of the Child).

In addition there are certain steps in a child's life which require the consent of everyone with Parental Responsibility or the leave of the court, for example:

• Causing the child to be known by a different surname; or
• Removing the child from the United Kingdom for longer than three months;
• The sterilisation of a child;
• Marriage of a child aged between 16-18 years.

The court may, at the time of making the Special Guardianship Order, give leave for the child to be known by a new surname and/or to be removed from the United Kingdom for longer than three months, either generally or for specified purposes.

For the avoidance of doubt, a child is any child or young person under the age of 18 years.

The Court may make a Special Guardianship Order in any family proceedings concerning the welfare of the child and following an assessment by the local authority. This applies even where no application has been made and includes adoption proceedings.

Arrangements may have evolved within families, or be the consequence of a sudden event. Some cases may have the consent of all with Parental Responsibility, whereas others may be contested.

Any person making an application for a Special Guardianship Order must give 3 months' written notice to their local authority of their intention to apply. If the child resides in County Durham and is not Looked After by another local authority then Children's Social Care will be responsible for the assessment of special guardians residing in Durham. The local authority receiving the notice will then have a duty to provide a report to the Court. In relation to a Child Looked After, the notice will go to the local authority looking after the child.

The only exception to the requirement for 3 months' notice is where the Court has granted leave to make an application and waived the notice period.

Where the local authority has received notice from an applicant or a request for a report from the Court, it should provide written information about the steps it proposes to take in preparing the report to the prospective Special Guardian and the parents of the child in question. This should include information about Special Guardianship support services and how to request an assessment of needs for support. See Special Guardianship Orders Leaflet.

Once notice has been received that an application for a Special Guardianship is to be made via Private Law Application or within the Local Authority's Assessment and Care Planning process, the plan/notice should be passed to the child/young person's social worker or, if the child is not previously known, arrangements must be made for the case to be allocated to a social worker. See Progressing New Special Guardianship Orders - Flowchart.

The allocated social worker should arrange a planning meeting as soon as practicable after the notice is received. The planning meeting should clarify the steps to be taken, who will carry out the necessary assessments and who will contribute to the report for the Court. Court timescales will need to be clarified.

The social worker or social workers preparing the Court report (for the Court Report Template see the LCS workflow) should be suitably qualified and experienced. There are no specific requirements as to the level of qualification or experience required and it will be for the manager of the relevant social work team to ensure that the allocated worker is competent to write the report.

In all cases there will need to be:

• An assessment of the current and likely future needs of the child (including any harm the child has suffered and any risk of future harm posed by the child's parents, relatives or any other person the local authority considers relevant). Where the assessment identifies that the child requires services from an agency other than Children's Social Care, the social worker should consult with the relevant Integrated Care Board (ICB) or Local Education Authority;
• An assessment of the prospective Special Guardian's parenting capacity including:
  1. Their medical history; DBS checks, references and other statutory checks; any previous assessment undertaken in respect of the prospective special guardian; any likely impact the Special Guardianship Order may have on relationships between the child and the parent;
  2. Their understanding of, and ability to meet, the child's current and likely future needs, particularly any needs the child may have arising from harm that the child has suffered;
  3. Their understanding of, and ability to protect the child from any current or future risk of harm posed by the child's parents, relatives or any other person the local authority consider relevant, particularly in relation to contact between any such person and the child;
  4. Their ability and suitability to bring up the child until the child reaches the age of eighteen.
• An assessment of the proposed contact/family time arrangements and the support needs (see Section 13, Assessment for Support) of the child, parents/those who have parental responsibility and the prospective special guardian.

The assessment of the applicants should include their medical history, the references (see Special Guardianship Order Reference Template) received and the Disclosure and Barring Service and other statutory checks undertaken for the assessment. The local authority database should be checked, with any issues arising being followed up.

No less than three-months after giving notification to the local authority the applicants should make their formal application at the court which made the care order. It is important not to delay the completing of the assessment of support as the applicant has 28 days to consider this assessment and make any representation within the 3 month notice period.

The recommendation to support the making of a Special Guardianship Order should be agreed at the Looked After Review, as part of the child's permanence planning arrangements.

All requests for Special Guardianship prior to submission to court (and supporting documentation) must be submitted to the appropriate Special Guardianship Panel to seek approval.

Practice Guidance on Special Guardianship (Family Justice Council) notes that where there are safeguarding or welfare concerns about a child, the statutory guidance is clear about the importance of local authorities engaging with the parents and the wider family network at an early stage through a Family Group Conference (see Family Group Conference Procedure): the FGC should be used to share information, resolve possible disputes and conflicts with the local authority and to address long - standing tensions within the family. The pre-proceedings phase of the Public Law Outline (PLO) provides an important opportunity to engage the parents and family members in discussions about the future care of the child. In assessing the appropriateness of any potential applicants, the local authority must assess whether any option would not be consistent with the child's welfare, or, would not be reasonably practicable.

Whilst Relaunching the PLO made clear the importance of aiming to meet the statutory requirement of completing each public law case within 26 weeks, Timetabling and Timescale for Full Family and Friends Assessments (Family Justice Council) provides that:

‘This document serves to remind social workers, Guardians, lawyers, and the judiciary regarding the process required to be incorporated into any timescales for a full Family and Friends Assessment to be done to an appropriate standard, so as to provide for a sufficient (usually 12 week) assessment period to undertake the complex requirements inherent in any full assessment. Delay for children is always to be avoided, but nothing in the Public Law Outline, primary legislation, or jurisprudence requires corners to be cut in coming to a safe evidenced conclusion, that places the welfare of the child at the heart of any recommendation or decision’.

See also: Care and Supervision Proceedings and the Public Law Outline Procedure.

Assessments should be robust, evidence-based and child-focused. Before the assessment, the prospective carers should be provided with full information about:

1. What the assessment will involve;
2. The time and commitment needed from them;
3. A letter should be sent explaining the expectations of the carers and what they should think about during the process.

The assessment should carefully balance the strengths families may have: consider any existing relationships they have with the child; explore their parenting experience; the significance for the child of remaining within their family and network, against the carers' capacity to meet the assessed needs and the challenges that a particular child may bring on a long-term basis (including any additional needs as a result of significant harm or neglect they may have experienced), and until their 18th birthday.

In recognising that each situation will be looked at on a case-by-case basis, an interim placement with the proposed special guardians may be appropriately considered to both establish relationships between the child and special guardians and confirm the applicants' ability to carry out their parenting responsibilities, meet the needs of the child and promote their welfare and best interests.

The child's Looked After Review should make a recommendation regarding the outcome of the Care proceedings for the child's Care Plan and this should be approved by the Designated Manager (Special Guardianship).

Final recommendations should not be made until the essential tasks and activities for a full Special Guardianship Order assessment are completed.

A Supervision Order should not be sought as a means to ensure support and services are provided by the local authority (or as a form of 'safety net' for a child). Where considered necessary, the report should detail the reasons why such an Order is required.

The prospective carers should have time to read the assessment report before it is filed and comment on the report.

Following the filing of the report, the prospective carers should be given the opportunity to seek independent advice and legal advice to understand fully the implications of any Orders made and if need be, make applications of their own.

A Special Guardianship Support Plan will need to be provided around the time of filing the Special Guardianship Order report and its recommendation, detailing the support to be provided to the carers and the child and include contact/family time for the child with their birth parents. The potential applicants should be able to seek legal advice about the Support Plan.

The social worker or social workers preparing the Court report (for the Court Report Template see the LCS workflow) should be suitably qualified and experienced.

Once completed, the Court Report should be submitted by the author(s) to their line manager(s) and legal services for approval, then submitted to the Special Guardianship Order Panel together with the Support Plan (and supporting documentation).

See Court Reports in Placement Order Applications and Adoption/Special Guardianship Guidance for what is required to be included in the report.

The court is unable to make a Special Guardianship Order unless and until it has received a Special Guardianship Report; however, where the bulk of the information required is already before the court in another format, the local authority is not required to start from scratch. Instead, the local authority should be directed to file a report, which will fulfil the requirements by providing any missing information and by setting out the remaining information in the form of cross-references to the information already before the court in other reports.

A Special Guardianship Order can be varied or discharged on the application of:

• The Special Guardian (or any of them, if there are more than one);
• The local authority in whose name a Care Order was in force before the Special Guardianship Order was made;
• Any person who is named in a Child Arrangements Order as a person with whom the child is to live before the Special Guardianship Order was made;
  OR
• With the leave of the court:
  • Any parent or guardian of the child;
  • Any step-parent who has Parental Responsibility;
  • Anyone who had (but no longer has) Parental Responsibility immediately before the Special Guardianship Order was made;
  • The child (if the court is satisfied that the child has sufficient understanding to make the proposed application).

Where the applicant is not the child and the leave of the court is required, the court may only grant leave if there has been a significant change in circumstances since the Special Guardianship Order was made.

The court may during any family proceedings in which a question arises about the welfare of a child who is subject to a Special Guardianship Order, vary or discharge the Order in the absence of an application.

All Special Guardianship assessments, including the Court Report, associated Special Guardianship Support Plan and financial assessment (where applicable) must be submitted to the next appropriate monthly Special Guardianship Order Panel. The Special Guardianship Order/Child Arrangement Order Panel Terms of Reference document sets out the required documentation that needs to be submitted to panel and the timelines. The Special Guardianship Order Panel acts as a quality-assurance and approval mechanism and ensures that the Guardianship Order Panel Court Report and Support Plan are completed to the required standard within the required timescales. Exceptionally, where time does not allow for this, the Strategic Manager (Looked After and Permanence or Principal Social Worker) should have sight of this and agree it in advance of submission to court.

In summary the Special Guardianship Order Panel will have 4 main roles:

• To steer the process of completing assessments within the given timescale;
• To ensure that proposals for financial support are discussed;
• To assure the quality of the assessment and report;
• To recommend the level and type of support (if any) to be offered by Children's Social Care.

Following changes to the Support Plan, reviews and where representations are provided from Special Guardians, the appropriate documentation must be submitted to the Review Panel, whereby the Review Officer will inform the Special Guardian in writing of the outcome of the Panel's decision.

The local authority must make arrangements for the provision for a range of support services in their area to meet the needs of people affected by Special Guardianship.

Special Guardianship support services are defined as:

• Financial support (see Section 17, Financial Support);
• Services to enable groups of children for whom a Special Guardianship Order is in force (or in respect of whom such an Order is being formally considered), special guardians, prospective special guardians, and parents of the child to discuss matters relating to special guardianship;
• Assistance, including mediation services, in relation to contact/family time between the child and their parents or relatives or any other person with whom the child has a relationship that the local authority considers to be beneficial to the welfare of the child;
• Therapeutic services for the child;
• Assistance for the purpose of ensuring the continuance of the relationship between the child and his/her special guardian or prospective special guardian, including training for the special guardian or prospective special guardian to meet any special needs of the child; respite care; and mediation in relation to matters relating to Special Guardianship Orders and;
• Counselling, advice and information;
• Where the support provided includes respite care requiring the provision of accommodation, the child must be Looked After for the duration of the period of respite care to ensure that appropriate safeguards are in place.

Special Guardianship Support will be subject to agreement of the Team Manager and approval of the Special Guardianship Order Panel.

The services described above may include cash assistance.

Support services should not be seen in isolation from mainstream services and it is important to ensure that families are assisted in accessing mainstream services and a wide range of other support/services including funding initiatives. Support should also be provided to ensure Special Guardians are aware of their entitlement and access to benefits including child benefit, child/working tax credit, universal credit, disability/carers/guardians allowance and benefit exemptions.

For further details of access to a range of services and support, please contact the Review Officers (Kinship Care & Support Team) by a Kinship Care and Support Request for Support Form. The Adoption and Special Guardianship Support Fund in England also covers therapeutic support for children, living in England, who were previously in care immediately before the making of a Special Guardianship Order. Access to therapeutic support may be accessed from the Full Circle Team.

Where the child was previously Looked After, the local authority that looked after the child has responsibility for providing support (where there is an identified need) for the first three years after the making of a Special Guardianship Order. Thereafter the local authority where the Special Guardian lives will be responsible for the provision of any support required. The local authority where the special guardian previously lived should cooperate as needed to ensure a smooth transition for the child.

Local authorities may also provide services to people outside their area in other circumstances where the authority considers it appropriate. For example, transitional arrangements by the originating authority where a family move to allow time for the new authority to review the family's existing plan without a break in service provision.

If a child is not Looked After, the local authority where the Special Guardian lives has the responsibility for Special Guardianship support where applicable.

Ongoing financial support, which has been agreed before the Special Guardianship Order was made, remains the responsibility of the local authority that agreed it so long as the family meet the criteria for payment.

Where the child is Looked After or was Looked After immediately prior to the making of the Special Guardianship Order, the following people MUST receive an assessment at their request:

• The child;
• The Special Guardian or prospective Special Guardian;
• A parent (but only in relation to their need for support with contact/family time and/or discussion groups).

Where the child is not Looked After or was not Looked After immediately prior to the making of the Special Guardianship Order, the following people MAY be offered an assessment of their need for Special Guardianship support services:

• The child;
• The Special Guardian or prospective Special Guardian;
• A parent.

In all cases, whether the Special Guardianship child is looked after or not, the following people also MAY be offered an assessment of their need for Special Guardianship support services:

• A child of the Special Guardian;
• Any person with a significant ongoing relationship with the child.

If a local authority decides not to assess in cases where they have discretion as above, they must notify the decision in writing, including reasons for the decision, to the person making the request. The person who requested the assessment must be allowed at least 28 days to make representations in relation to the decision.

It will not always be necessary to undertake an assessment before providing information, advice or counselling services. However, if the local authority is considering providing any of the support services (see listing above) then a full assessment should be carried out. However where a request relates to a particular service or where it is clear that a particular service is what is required, then the assessment process can be limited to looking at the need for that service.

Most assessments will be carried out during the general assessment for the court report and should consider the following factors based on the Child and Family Assessment (with reference to the Special Guardianship Regulations):

• The developmental needs of the child;
• The child's educational needs;
• The parenting capacity of the Special Guardian or prospective Special Guardian to meet the child's needs;
• Family and environmental factors that have shaped the life of the child;
• What the life of the child might be like with the proposed Special Guardian;
• Any previous assessments undertaken in respect of the child, the Special Guardian or the prospective Special Guardian;
• The needs of the Special Guardian or prospective Special Guardian and their family;
• The likely impact of the Special Guardianship Order on any pre-existing relationship between the child, parent and Special Guardian.

Consultation with the relevant Integrated Care Board and Local Education Authority should form part of the assessment process, and the person whose needs are being assessed should be interviewed unless the assessment relates only to information and advice or unless it is not appropriate to interview a child. In this case the child's actual or prospective special guardian may be interviewed.

The assessment process should be flexible and should not delay provision of appropriate services.

After the assessment has been undertaken the local authority is required to prepare a written report of the assessment. The conclusion of the assessment will be subject to agreement of the Team Manager. Special Guardianship Support will be subject to the approval of the Special Guardianship Order Panel. At the end of the assessment and once the necessary panel approval has been obtained, the social worker must inform the person requesting provision of its outcome, including:

• Information about the outcome of the assessment and the reasons for it;
• Where it relates to financial support, the basis on which this is determined;
• The services (if any) that the local authority proposes to provide to help meet the child's needs;
• If financial support is to be paid, the amount and conditions attached.

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. Approval will be sought from the Team Manager/Operations Manager. Provision will be reviewed as soon as possible after the support has been provided in accordance with the procedures set out above.

Where an assessment identifies the need for ongoing support services, a Special Guardianship Support Plan (template accessed by LCS – Special Guardianship Order Workflow) 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 Child Looked After, 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/family time Arrangements between the child and parent(s) which should include: Type of contact/family time, frequency and duration, who is responsible for making the arrangements of contact/family time, what practical arrangements need to be provided to facilitate contact/family time 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.

The proposed Special Guardianship Support Plan should make clear the authority's intentions to provide support and services (including financial support) and be discussed and agreed with the prospective Special Guardian(s).

The Special Guardianship Support Plan will need to be agreed by Team Manager and approval sought by the Special Guardianship Order Panel. The allocated social worker must ensure the final Plan is shared with the prospective Special Guardian.

Special Guardianship Support Plans (Services) 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.

Support Plans may be reviewed as a paper exercise where there is no change or a minor change in circumstances; however, if there is a substantial change of circumstances, e.g. a serious change in the behaviour of the child, it would normally be necessary to conduct a new assessment of needs.

Where financial support is being paid, a review should take place annually with the completion of a financial checklist, financial assessment (where appropriate) or sooner if there are any changes in circumstances or break of conditions. The Payment of Transitional Financial Support for Special Guardianship / Child Arrangement Order Form will be signed by the Special Guardian prior to any financial payments being made. See Section 17, Financial Support.

Any change to the Special Guardianship Support Plan will be subject to the agreement of the Team Manager and approval of the Special Guardianship Order Panel.

If the local authority decides to vary or terminate the provision of support after the review, notice in writing must be given and the person concerned should be given 28 days to make representations against this decision.

Children's Social Care will make financial contributions (see Special Guardianship Policy) to a Special Guardian, or prospective Special Guardian, in order to maintain or achieve permanence for a child or young person, via Special Guardianship. This policy applies where Special Guardianship has been assessed to be in the best interests of the child or young person.

If the local authority proposes, as a result of the annual review, to revise the Support Plan and reduce or terminate financial support or revise the plan, before making that decision the local authority must give the person an opportunity to make representations (allowing 28 days). For that purpose it must give the person notice of the proposed decision and the time allowed for making representations, however, the local authority may suspend financial support pending that decision, if they think it appropriate.

Where financial support is time limited and the Special Guardian is notified of the proposed ceasing of support the Special Guardian may wish to make representation against this decision. Representation must be made in writing and sent directly to the Children's Social Care Payment Team within 28 days of receipt of the letter, clearly setting out the exceptional needs of the child/young person or any other exceptional circumstances which would warrant consideration of further financial support.

Receipt of the l letter will be acknowledged and appropriate arrangements will be made to undertake a review/visit to the Special Guardian to complete a full financial check and review current circumstances. The review will be submitted to the next appropriate Special Guardianship Order Review Panel and the Special Guardian will be informed of the Panel's decision.

Please note: representations can be made to the Children's Social Care Complaints Officer*, if in relation to the Special Guardianship review process (or matters of communication or staff conduct within that process); but not if the complaint is about the decision made by either the review process, or the review panel. See Compliments, comments and complaints Factsheet.

If a complaint about the review process finds that the process followed was flawed, consideration can then be given to undertaking the review process again. However, in such circumstances, if a further review results in the same decision as previously, there is no further recourse through the local authority's representations procedures.

Disagreement with the decision made by the local authority as a result of a regular review, or a review panel, can be raised with the Local Government and Social Care Ombudsman However, the Ombudsman will consider complaints about the process followed, if this is believed to have been flawed. The Ombudsman can be contacted as follows:

Local Government and Social Care Ombudsman
PO Box 4771
Coventry
CV4 0EH
Tel: 03000 610614

Website: Local Government and Social Care Ombudsman

Children who were looked after by a Local Authority immediately before the making of a Special Guardianship Order may qualify for advice and assistance under the Children Act, 1989, as amended by the Children (Leaving Care) Act 2000 and the Adoption and Children Act, 2002, in the context of the Special Guardianship, to qualify for advice and assistance, Section 24(1A) of the Children Act 1989 provides that the child must:

• Have reached the age of 16 but is not yet 21;
• If less than 18 years old, have a Special Guardianship Order in force;
• If 18 years old or above, have had a Special Guardianship Order in force when they reached that age; and
• Have been looked after by a Local Authority before the making of a Special Guardianship Order. If those criteria are met, the child is a "Qualifying Child" within the meaning of the Act.

The relevant Authority (authority which last looked after the person) must assess their needs to establish whether they require advice and assistance. Where, following a Child and Family Assessment the authority concludes that support will be necessary over a period of time, a plan should be drawn up with the young person, outlining the support that will be provided. In order to determine the extent of the support required, a Child and Family Assessment may be required and the plan that follows might follow the same format as a pathway plan for a relevant or former relevant child. The plan will outline the support to be provided to the young person, including, if necessary, any financial support. The plan will be drawn up by a social worker or suitably qualified person.

See: Leaving Care and Transition Procedure.

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/family time 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) 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; and
• Each guardian of the child;
• The relevant local authority if the child was previously a looked after child.