What is a Special Guardianship Order?

It is a private law order, which falls under Section 14A of the Children Act 1989. Although it is a private law order, it is predominantly accessed within Public Law Proceedings. It has been acknowledged to ‘bridge the gap’ between long-term fostering and adoption. It has become a vital part of the Family Law system in recent times and provides children with stability and security, if they are unable to reside with their birth parents. It also affords children the opportunity to remain with their birth families and assists with their identity needs in the future.

A Special Guardianship Order is an Order which grants the Special Guardian/s enhanced parental responsibility for the child/ren. Essentially, it allows the parents to retain their parental responsibility, but the Special Guardian/s parental responsibility overrides this, should decisions need to made in respect of the child/ren. It affords the Special Guardian/s the ability to make day to day decisions for the child/ren and ensure that their welfare needs are met. It is a duty of a Special Guardian to consult with the parent/s regarding any decisions, however, should they disagree, it will ultimately be the decision of the Special Guardian/s that takes precedence.

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As a Special Guardian, you are afforded the right to;

a)     apply for a passport for the child/ren and;

b)    consent to medical treatment and education.

However, you should be aware that you are not able to;

a)     change the child’s surname or;

b)     remove the child/ren from the UK for a period of more than 3 months.

Should you wish to do either of these, you would need permission from the Court or consent from all persons with parental responsibility.

The Order is beneficial for the child/ren as it allows them to maintain a degree of contact with their birth parents, as long as the Special Guardian believes it is safe to do so. Therefore, it means that the child/ren can have their identity needs met whilst being in a safe and stable environment.

Section 14A(5) of the Children Act 1989 confirms the person/s who are able to apply for a Special Guardianship Order. It is important to be aware of Section 14A(2) of the Children Act 1989 which requires that the applicant must be over 18 years of age and cannot be a parent of the child/ren. Essentially, you can apply for a Special Guardianship Order if;

a)     You are a guardian of the child;

b)    You are a relative of the child;

c)     You are a Foster Carer of the child;

d)    You are a person with a personal connection to the child.

It is noteworthy that you may have to apply for leave of the Court to make such an application, this is dependent on the individual circumstances.

It is the Local Authority’s duty to assess you, as a Special Guardian and this will include home visits, interviews, and DBS and Medical checks, to ensure that you are able to care for the child/ren. You should notify the Local Authority of your intention to make such an application at the earliest opportunity to enable them to undertake the necessary assessments and you must notify them at least 3 months before you make an application to Court. The Court will not consider an application unless the Local Authority have been given 3 months notice and will not make an order unless the relevant assessments and checks have been undertaken, and a support plan prepared.

A Placement Order (authorising the Local Authority to seek an appropriate adoptive placement for a child) is the most draconian Order which can be made by the Court, so the introduction of Special Guardianship Orders affords the Court the opportunity to consider a less interventionist order, should there be an appropriate person/s to care for a child/ren. It preserves family connections for a child/ren and offers a fundamental alternative to adoption.  It is important to understand that this would not be the only occasion when a Special Guardianship Order is sought, and all circumstances are different but it is more commonly used within Public Law Proceedings.

If you are considering becoming a Special Guardian, it is important that you are afforded the opportunity to seek legal advice and ensure that you are fully informed.

Whilst it is extremely rewarding, it is important that you are fully informed and are aware of the process.

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Article written by Catriona Smedley, Trainee Solicitor, Derby office

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