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6.2.17 Special Guardianship Orders

RELEVANT GUIDANCE

Adoption Support Fund (Mott MacDonald / DfE)

DfE Special Guardianship Guidance (2017)

Firm Foundations: Complaints about Council Support and Advice for Special Guardians (Local Government and Social Care Ombudsman) (May 2018)

RELEVANT CHAPTER

Adoption Service Statement of Purpose Procedure

AMENDMENT

This chapter was amended in October 2019 in line with the Children and Social Work Act 2017 and revised statutory guidance which require schools, through the designated teacher to provide support to previously Looked After Children.

A previously Looked After Child is one who is no longer looked after in England and Wales because they are the subject of an Adoption, Special Guardianship or Child Arrangements Order which includes arrangements relating to with whom the child is to live, or when the child is to live with any person, or has been adopted from ‘state care’ outside England and Wales.

Additionally to reflect the Local Government and Social Care Ombudsman good practice points to follow when working with Special Guardians. A link to the full report ‘Firm Foundations: Complaints about Council Support and Advice for Special Guardians (Local Government and Social Care Ombudsman) (May 2018)’ was added into the Relevant National Guidance section of this chapter. (See Appendix 4: Good Practice: Getting it Right First Time).


Contents

  1. Background
  2. Legal Framework
  3. The purpose of Special Guardianship
  4. Who can apply to be a Special Guardian?
  5. When can a SGO be made?
  6. Decision making in relation to SGO Applications for Looked After Children
  7. Reports about the suitability of Applications to be Special Guardians
  8. Variation and Discharge of Special Guardianship Order
  9. Special Guardianship Support Services
  10. The Special Guardianship Support Plan
  11. Review of Special Guardianship Support Plans

    Appendix 1: Special Guardianship Report

    Appendix 2: Special Guardianship Support Plan

    Appendix 3: Explanatory Memorandum to Special Guardianship (Amendment) Regulations (2016) with the Statutory Instrument

    Appendix 4: Good Practice: Getting it Right First Time


1. Background

The Prime Minister's Review of Adoption and the white paper "Adoption, a new approach" set out a number of routes to permanence for Looked After children.

One of these routes was a new legal status called "special guardianship".

This was developed to give children greater security than long term fostering, but without the absolute legal severance from the birth family that stems from an Adoption Order. This was seen as particularly important for older children who did not wish to make the absolute break with their family.


2. Legal Framework

The Adoption and Children Act 2002 provides the legal framework for Special Guardianship under the Children Act 1989.

The Special Guardianship Regulations 2005 were implemented in December 2005 and amended with The Special Guardianship (Amendment) Regulations 2016 - thereby ensuring parity of assessment requirements with other Orders.

This legislation is supported by the DfE Special Guardianship Guidance (2017) produced by the Department for Education.

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 Education of Looked After and Previously Looked After Children Procedure.


3. The purpose of Special Guardianship

This is to,

  • Ensure Special Guardians will have Parental Responsibility for the child which then give the carer clear responsibility for all aspects of caring for the child and for taking decisions to do with their upbringing. Although birth parents retain their legal Parental Responsibility, the special guardian only has to consult with them about these decisions in exceptional circumstances;
  • The child is no longer Looked After by the Local Authority;
  • Provide a firm foundation on which to build a lifelong permanent relationship between the child and their carer;
  • Be legally secure;
  • Preserve the basic link between the children and their birth family;
  • Be supported by access to a full range of support services including where appropriate financial support.


4. Who can apply to be a Special Guardian?

A Special Guardianship Order (SGO) is an order appointing a person or persons to be a child's special guardian. Applications may be made by an individual or jointly by two or more people.

Joint applicants do not need to be married. Special Guardians must be 18 or over. Parents of a child may not become that child's special guardian.

A court may make a SGO in respect of a child in the application of:

  • Any guardian of the child;
  • 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) [1];
  • Anyone who holds a Residence Orders / Child Arrangement Order with respect to the child or who has the consent of all those in whose favour a Residence Order / Child Arrangement Order is in force;
  • Anyone with whom the child has lived for three of out the last five years;
  • Where the child is in the care of a local authority, any person who has consent of the local authority;
  • Anyone who has the consent of all those with parental responsibility for the child;
  • Any person, including the child, who has the leave of the court to apply.

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

    Any person who wishes to apply for a special guardianship order must give three months' written notice to the local authority of their intention to apply. The only exception to this is where a person has the leave of the court to make a competing application for a Special Guardianship Order where an application for an Adoption Order has already been made.

[1] 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 SGO 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.


5. When can a SGO be made?

The Court can make an SGO in any family proceedings concerning the welfare of a child if they think an order should be made. This applies even where no application has been made and includes adoption proceedings. When considering whether to make a SGO, the child's welfare is the Court's paramount consideration and the welfare checklist in Section 1 of the Children's Act 1989 applies.

Any person who wishes to apply for a SGO must give 3 months written notice to the Local Authority of their intention to apply.

The exception to this is where a person has leave of the Court to make a competing application for a SGO where an application for an Adoption Order has already been made. This is to prevent the competing application delaying the Adoption Order hearing.


6. Decision making in relation to SGO Applications for Looked After Children

In the majority of cases, SGO applications will be made in respect of Looked After children, particularly older children. Applicants will normally be their family / friends carers or mainstream foster carers.

Progress towards achieving permanence for LAC is ongoing and monitored through supervision and statutory reviews (refer to Permanence for Children Procedure).

Special Guardianship must be considered as part of this process.

At the earliest stage when any application for Special Guardianship is being considered, endorsement must be sought from a District Manager / Head of Service.

When there is any proposal for financial support this must be authorised by the Assistant Director (Staying Safe) and a decision in principle should be sought at the earliest stage.


7. Reports about the suitability of Applications to be Special Guardians

The rules stipulate that the Court cannot make a Special Guardianship Order without a report.

The local Authority must investigate and prepare a report for the Court (or arrange for someone else to prepare the report on their behalf).

The report must cover areas described in Regulation 21 (Special Guardianship Regulations 2005) and the schedule (see Appendix 1: Special Guardianship Report), together with the enhanced assessment and reporting requirements set out in the Special Guardianship (Amendment) Regulations 2016:

  • 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);
  • An assessment of the prospective Special Guardian's parenting capacity including:
    1. 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;
    2. 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;
    3. Their ability and suitability to bring up the child until the child reaches the age of eighteen.
The proposed contact arrangements and the support needs (see Section 8, Special Guardianship Support Services) of the child, parents and the prospective special guardian.

Social workers preparing reports to the court must be "suitably qualified and experienced" (Para 106 Special Guardianship Guidance).

The local authority must, if they decide not to carry out an assessment, give the person/s applying notice of the decision in writing (including the reasons for it) and must allow him/her/them a reasonable opportunity to make representations in relation to that decision.


8. Variation and Discharge of Special Guardianship Order

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;
  • 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.


9. Special Guardianship Support Services

The social worker making the application must consider the need for support services.

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.

NOTE: Financial Support is fully covered in the Financial Support Procedure. The Assistant Director Staying Safe must authorise any financial support.

Other forms of support should be considered such as help with contact and therapeutic help.

It is important to link the child and Special Guardians to mainstream services where possible such as mediation services and CAMHS.

It may be appropriate for the child's social workers and/or the Fostering Team Social Worker to remain involved for a short period after the making of the order to provide social work support.

If necessary, the Local Authority can contract with other Local Authority or independent registered providers to provide special guardianship support services.

Assessments for special guardianship support services should follow the guidance set out in, and use the domains of, the Assessment Framework, recognising that the context is different from that for birth families. This takes into account the child’s developmental needs, the parenting capacity of the special guardian and consideration of the family and environmental factors that together help to explain the child’s life so far and what life might be like with the new family.

Consultation with the relevant Clinical Commissioning Group and Local Educations 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 Support Plan must be shared with the prospective SG's before the matter is considered by Court and the prospective SG's should be given an opportunity to respond to this. The local authority may decide to alter the plan, following representation from the prospective Special Guardians. If the local authority decides not to change the plan, they must give the prospective Special Guardians the reasons for this.

The support plan will also be viewed and endorsed at the Staying Safe Division Gateway and Permanency Panel which takes place fortnightly.

The regulations state that the responsibility for special guardianship support remains with the Local Authority where the child was last Looked After for 3 years after the making of the order.

When the three years has expired the Local Authority where the special guardian lives become responsible for assessing and providing support services.


10. The Special Guardianship Support Plan

Where an assessment identifies the need for ongoing support services, a Special Guardianship Support Plan must be completed.

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 the Education of Looked After and Previously Looked After Children Procedure.

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.

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.


11. Review of Special Guardianship Support Plans

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.


Appendix 1: Special Guardianship Report

Click here to see Appendix 1: Special Guardianship Report.


Appendix 2: Special Guardianship Support Plan

Click here to see Appendix 2: Special Guardianship Support Plan.


Appendix 3: Explanatory Memorandum to Special Guardianship (Amendment) Regulations (2016) with the Statutory Instrument

Click here to see Appendix 3: Explanatory Memorandum to Special Guardianship (Amendment) Regulations (2016) with the Statutory Instrument.


Appendix 4: Good Practice: Getting it Right First Time

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.

End