Special guardianship offers legal security without requiring the legal severance from the birth family which stems from an adoption order.
A special guardianship order gives the special guardian parental responsibility for the child. The special guardian shares parental responsibility with the child’s parents and can make nearly all the major decisions about the child without having to consult them.
The intention is that the special guardian will have clear responsibility for all the day-to-day decisions about caring for the child or young person and for taking any other decisions about their upbringing, for example, their education.
To apply for a special guardianship you must be ‘eligible’. The following people can apply:
- Any guardian of the child.
- A local authority foster carer with whom the child has lived for one year immediately preceding the application.
- Anyone who holds a child arrangement order with respect to the child, or who has the consent of all those in whose favour a child arrangement order is in force.
- Anyone with the consent of the local authority if the child is in care.
- 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.
- A relative of the child if the child has lived with the relative for a year preceding the application. A relative is a child’s grandparent, brother, sister, uncle or aunt (by full or half blood) or by marriage or civil registration or a step-parent.
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 aged 18 or over and the parents of the child cannot become a special guardian.
How to apply
If you wish to apply for a special guardianship order you must give the local authority three months’ notice in writing.
The only exception to this is if you have the court’s permission to make an application or if there is already an application for an adoption order before the court.
You should write to:
Special Guardianship Manager
Devon County Council
Devon, EX2 4QD
After you have applied
You will be notified in writing as to whether or not your application has been accepted.
If successful, a social worker will be allocated to complete an assessment which will be required by the court, who must be satisfied that the child’s best interests are being met.
The assessment will include:
- statutory checks with other agencies such as health, education and local authorities where you have lived
- Disclosure and Barring Service checks
- full medicals on the applicant and child
- the views of the child
- the views of parents of the child
- information about you and your views
- information about the child
- information about the parents
- written references – referees will also be visited by the social worker
- information about contact
- a support assessment (in most cases).
When the report is complete the social worker will make a recommendation to the court.Contact with the birth family
Please note that financial support and other services may be available, however, if a child is not (or was not) looked after by a local authority, then there is no entitlement to an assessment for special guardianship support services, although it is possible to make a request for this assessment.
Prior to a special guardianship order being made a social worker will visit you to do an assessment for a support package in order to identify what support is needed.
The court will not grant an order without seeing a support package. It is therefore essential that all relevant information is provided as soon as possible to prevent delay.
Examples of possible services available:
- Advice on new or existing contact arrangements.
- Advice and information.
- Access to support groups.
- Therapy services.
- Training for the special guardian to meet the needs of the child.
- Financial support.
Biological parents remain financially responsible for their child even when a special guardianship order has been issued and in most cases they will be obliged to pay maintenance for the child’s upbringing.
Special guardians are entitled to ask the local authority for an assessment to see if they are entitled to a special guardian allowance.
The allowance is means tested and considers the ongoing needs of the child.
A financial assessment form and financial contract have to be completed and returned. All information on the form must be backed up with documentation and must be easily identifiable from bank statements otherwise you will need to provide additional supporting documentation.
Partners of prospective special guardians and any adults living in the home need to be included in the financial assessment.
If an allowance is agreed it is expected to help manage the day-to-day expenses of caring for the child as well as any additional expenses incurred for equipment, activities and travel expenses for contact.
The allowance will be reviewed annually. If your financial circumstances change you should notify the local authority as soon as possible so that your support can be reassessed.
The Special Guardianship Team will help to ensure the continuance of the relationship between the special guardian and the child including arranging training if needed.
If the child requires any therapeutic support which was not identified when the initial support package was made, the special guardian will be expected to make contact with the Child and Adolescence Mental Health Service, (CAMHS) to explore whether these resources are appropriate. If not, the Special Guardianship Service will consider sourcing alternative provision.Alternatives
It can be important for children to have contact with birth parents and family as it allows them to maintain a relationship and have a sense of identity.
It should be a positive experience but there are occasions when it is not seen as in the child’s best interest. This may be because the child suffers with emotional or behavioural difficulties before, during or after contact. It could also be because the parent says things which may upset the child or there are occasions when a child will simply refuse to go.
While it is important for special guardians to promote and encourage contact they cannot force a child to attend.
The level of contact with the birth family recommended by the local authority will be something that is discussed with you as part of the support package.
Parents can apply for a contact order and, if granted, contact cannot be changed without going back to court.
Contact orders prevent a special guardian from varying the contact arrangements to suit the changing needs of the child. However, a special guardian can terminate a contact session if the child becomes distressed or is unsafe or stop contact if the child is at risk or suffering significant harm.
It is generally expected that special guardians will supervise contact between the child and their parents and family members.
In some circumstances, it may be necessary for contact to be supervised by a professional following a risk assessment. However, work can be undertaken with special guardian and parents to reduce risk and put safety measures in place so that eventually special guardians will take on the supervisory role within a reasonable timeframe.
If direct contact cannot take place then telephone contact may be an alternative.
If no contact order is in place and a special guardian is considering making changes to the contact arrangements, such as allowing it to become unsupervised, it is advised that they first seek advice from the Special Guardianship Team.
There are several alternatives to special guardianship.
Sometimes no order is necessary when everyone is in agreement about where the child should live. However, if a child is living with a person who is not related for more than 28 days this is called private fostering and children’s services must be notified.
A child arrangement order can be granted by a court when there is no agreement about where the child should live. The person who is granted a child arrangement order obtains parental responsibility for the child.
Sometimes children need more security and certainty than special guardianship can provide and adoption is an option that can be considered. Birth parents lose parental responsibility following an adoption order being made.