What is a Special Guardianship Order?
A Special Guardianship order is an order appointing one or more people over the age of 18 years to be a child’s special guardian. The order gives the special guardian parental responsibility for the child, which that person may exercise to the exclusion of any other person with parental responsibility, except for another special guardian. The order is a private law order, which is made where a child cannot return to a parent, but does not need to be kept in care or be adopted.
A Special Guardianship Order may be appropriate where:
- A suitable wider family member or friend has been assessed as able to provide long-term care for the child.
- A child is too old for adoption.
- Adoption is not culturally acceptable to the child’s family.
- The child is settled in a long-term foster placement and no longer needs social work involvement.
It can be challenged with the court’s permission. The order does not exclude the natural parents from the child’s life, but enables the special guardian to control their involvement and to provide care, permanence and stability for the child.
Who can make an application for a Special Guardianship Order?
Those with automatic rights to make an application:
- Any guardian of the child;
- Any individual named in a child arrangements order as a person with whom the child is to live;
- any person with whom the child has lived for a period of at least three years;
- in any case where a child arrangements order in force with respect to the child regulates arrangements relating to with whom the child is to live or when the child is to live with any person, has the consent of each of the persons named in the order as a person with whom the child is to live;
- in any case where the child is in the care of a local authority, has the consent of that authority; or
- in any other case, has the consent of each of those (if any) who have parental responsibility for the child.
All other applicants need leave of the court to make an application.
Who needs to know you are making an application?
Three months’ notice of the application must be given to everyone who has parental responsibility for the child, the local authority, anyone with a residence order and the child him/herself (via their children’s guardian) if they are subject to care proceedings or via the local authority if the child is subject to a care order.
Effect of a Special Guardianship order
A Special Guardianship Order gives the special guardian: –
- exclusive rights to exercise parental responsibility for the child until they are aged 18
- the right to make decisions about their care, save for a change of name or removal from the country for over 3 months
- the right to appoint a testamentary guardian in the case of the special guardian’s death
- entitlement to be assessed by the local authority for support, financial and otherwise
Parents retain: - parental responsibility and the right to be consulted on major decisions eg name, religion
- the right to apply for contact or specific issue orders without leave of the court
- a special guardian does not confer citizenship
Special Guardianship: checklist of steps and timetable to final hearing
The applicant must seek leave from the court before making an application. There are different types of application forms if there are any existing proceedings. Supplemental forms need to be also submitted when domestic abuse is involved.
Applications can be made during care proceedings however we will focus only on private law proceedings below.
In private law proceedings
CAFCASS must carry out a risk assessment they has cause to suspect that the child concerned is at risk of harm and to provide that assessment to the court.
Directions the court usually makes
The local authority will be tasked with preparing a special guardianship report. Such report usually includes:
(1)
- information about the child’s background and needs;
- information about the child’s parents;
- information about the potential special guardian(s) and their capacity to meet the child’s needs, including managing contact with parents
- special guardianship support plan – detailing what support is available in raising the child, including financial support, help with legal costs and costs of any future proceedings eg over contact. Such report is usually filed no later than 3 months of notice.
(2)
- Parties to file statements
- Directions for a children’s guardian report
- Any other assessments such as psychological or parents or children
Issues for final hearing
The court will consider:
- Appropriate placement for the child
- Appropriate order for the placement
- Care or special guardianship?
- Special guardianship or adoption?
- Other public proceedings
How much does it cost?
The cost of such proceedings will vary from case to case and will depend upon our level of involvement.
As a guide our lawyers bill on an hourly basis. Applying for special guardianship as you may appreciate involves a multiplicity of professionals and more often than not parents who may oppose the application. As such, matters can be complex and be fought out over several months.
We would estimate that the costs of such proceedings if we were involved from beginning to end would cost in the region of £5,000 – £7,000 + VAT. This could be more or less subject to the facts of the case and our involvement.
