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BexleyChildren's Services Procedures Manual

Applications for Special Guardianship Orders

RELATED CHAPTER

This chapter should be read in conjunction with Permanence Planning Guidance.

RELEVANT NATIONAL GUIDANCE

DfE, Special Guardianship Guidance

Adoption Support Fund

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

The Designated Teacher for Looked After and Previously Looked After Children: Statutory Guidance on their Roles and Responsibilities

AMENDMENT

This chapter was updated in April 2020 to reference and reflect the Family Justice Council: Interim Guidance on Special Guardianship (Family Justice Council, May 2019) (see new Section 6.2, Special Guardianship Applications in Care Proceedings).

Contents

  1. Introduction
  2. Who may Apply?
  3. Parental Responsibility
  4. The Circumstances in which a Special Guardianship Order may be Made
  5. Planning Meeting
  6. Approval of Special Guardianship for Looked After Children
  7. Report to the Court
  8. Discharge of Special Guardianship Order
  9. Special Guardianship Support
  10. Entitlement to Assessment for Special Guardianship Support
  11. Assessment for Support
  12. The Special Guardianship Support Plan
  13. Review of Special Guardianship Support Plan
  14. Financial SGO Policy
  15. Urgent Cases
  16. Special Guardian Duty on the Death of the Child
  17. Appendix 1: Financial Support Application Form
  18. Appendix 2: Special Guardian Allowance Review of Child's Needs
  19. Appendix 3: Post Special Guardian Support Assessment of Need
  20. Appendix 4: Outcome of Special Guardianship Allowance Review Letter
  21. Appendix 5: Good Practice: Getting it Right First Time

1. Introduction

Special Guardianship offers an option for children needing permanent care outside their birth family. It can offer greater security without absolute severance from the birth family as in adoption.

It will address the needs of a significant group of children, mainly older, who need a sense of stability and security but who do not wish to make the absolute legal break with their birth family that is associated with adoption.

It will also provide an alternative for achieving permanence in families where adoption, for cultural or religious reasons, is not an option.

A Special Guardianship Order offers greater stability and legal security to a placement than a Child Arrangements Order.

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.

Special Guardians will have Parental Responsibility for the child and, whilst this will be shared with the child's parents, the Special Guardian will have the ability to exercise this responsibility without seeking permission from the parents.

A Special Guardianship Order made in relation to a Looked After Child will replace the Care Order and the Local Authority will no longer have Parental Responsibility.

A Care Order, however, will not automatically revoke a Special Guardianship Order although the Special Guardian's exercise of Parental Responsibility will be restricted as the local authority will have primary responsibility for decision-making under the Care Order.

For further details about the Special Guardianship as a permanence option for Looked After Children, see Permanence Planning Guidance.

People thinking about becoming special guardians will be provided with clear, user-friendly information to help them make informed choices. This should include information on support available and how this is reviewed.

2. Who may Apply?

Applications for Special Guardianship may be individual or joint. Joint applicants do not need to be married. Special Guardians must be 18 or over.

The following persons may apply without having to obtain the leave of the court:

  • Any guardian of the child;
  • 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)[1];
  • Anyone 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 3 out of the last 5 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 he has obtained the leave of the court to make the application.

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

[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.

3. Parental Responsibility

The Special Guardian will have Parental Responsibility for the child and 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.

In addition there are certain steps in a child's life which require the consent of every-one with Parental Responsibility, for example:

  • The change of surname of the child;
  • The removal of the child from the United Kingdom for longer than 3 months;
  • The sterilisation of a child.

4. The Circumstances in which a Special Guardianship Order may be Made

The Court may 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 making an application for a Special Guardianship Order must give 3 months' written notice to their local authority of their intention to apply. In relation to a Looked After Child, the notice will go to the local authority looking after the child. In all other cases, the notice will be sent to the local authority for the area where the applicant resides. The local authority receiving the notice will then have a duty to provide a report to the Court.

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 send 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.

5. Planning Meeting

Once notice has been received that an application for Special Guardianship is to be made, the notice should be passed to the allocated social worker or, if the child is not previously known, arrangements must be made for the case to be allocated to a social worker.

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 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).

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 11, Assessment for Support) of the child, parents and the prospective special guardian.

The assessment of the applicants should include their medical history, the references received and the Disclosure and Barring Service and other statutory checks undertaken for the assessment.

6. Approval of Special Guardianship for Looked After Children

6.1 General

If the child is Looked After and the application has been agreed as part of the child's Permanence Plan, the assessments will usually have been undertaken and the outcomes agreed as part of the permanence planning for the child, in which case there will be no need to hold a planning meeting.

Special Guardianship as an outcome for a Looked After child must be approved by the Designated Manager (Special Guardianship).

6.2 Special Guardianship Applications in Care Proceedings

Interim Guidance on Special Guardianship (Family Justice Council, May 2019) has confirmed that alternative potential carers should be identified at an early stage – including through pre-proceedings where possible and by convening a Family Group Conference. Nevertheless, identification of carers should not be as a result of parent's approval/disapproval but should focus on the child's interests.

However, there is recognition that some applicants may be identified, or come forward, late in proceedings and the court will need to give careful consideration with regard to a possible extension of the 26-week timescale (see Care and Supervision Proceedings and the Public Law Outline Procedure).

Assessments should be 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; any existing relationships they have with the child and 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 and until their 18th birthday.

See: Court Reports in Placement Order Applications and Adoption/Special Guardianship Guidance, Special Guardianship - Matters to be Dealt with in Report for the Court.

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 family and friends' assessment are completed.

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 for the child with their birth parents. The potential applicants should be able to seek legal advice about the Support Plan.

7. Report for the Court

The social worker or social workers preparing the Court report should be suitably qualified and experienced.

Once completed, the Court Report should be submitted by the author(s) to their line manager(s) for approval.

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

8. Discharge of Special Guardianship Order

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

  • The Special Guardian;
  • The local authority in whose name a Care Order was in force before the Special Guardianship Order was made;
  • Anyone named in a Child Arrangements Order as a person with whom the child was to live before the Special Guardianship Order was made;

    or

  • With the leave of the court:
    • The child's parents or guardians;
    • Any step parent who has Parental Responsibility;
    • Anyone who had Parental Responsibility immediately before the Special Guardianship Order was made;
    • The child (if the court is satisfied that the child has sufficient understanding).

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

The local authority must make provision for a range of Special Guardianship support services.

Special Guardianship support services are defined as:

  • Financial support (see Section 14, Financial Support);
  • Services to enable children, Special Guardians and parents to discuss matters relating to special guardianship;
  • Assistance including mediation in relation to contact between the child and their parents, relatives or significant others;
  • Therapeutic services for the child;
  • Assistance to ensure continuance of the relationship between the child and the Special Guardian, including training to meet any special needs of the child, respite care, and mediation;
  • Counselling, advice and information.

Special Guardianship Support will be subject to the approval of the Designated Manager (Special Guardianship Support).

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 are aware of their entitlements to tax credits and social security benefits.

Where the child was previously Looked After, the local authority that looked after the child has responsibility for providing support for the first 3 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.

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

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

In addition to the support provided by local authorities the Adoption 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.

Based on the assessment of needs, local authorities can apply for funding from the Adoption Support Fund.

10. Entitlement to Assessment for Special Guardianship Support

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 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.

11. Assessment for Support

The assessment should be based on the Assessment Framework under Working Together to Safeguard Children and include the following:

  • 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 and the capacity of the Special Guardian or prospective Special Guardian to respond to those experiences;
  • Comment on how life with the Special Guardian might be for the child;
  • Any previous assessment of the child or Special Guardian that is relevant;
  • The needs of the Special Guardian or prospective Special Guardian and their family;
  • The impact of the Special Guardianship Order on the relationship between the child, parent and Special Guardian.

Special Guardianship Support will be subject to the approval of the Designated Manager (Special Guardianship Support).

At the end of the assessment and once the necessary 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.

12. 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 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.

13. Review of Special Guardianship Support Plans

Special Guardianship Support Plans must be reviewed taking into account the following:

  • Any change of circumstances affecting the support;
  • At whichever stage of implementation of the plan is considered most appropriate;
  • In any event at least annually.

The reviews may be 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.

Any change to the Special Guardianship Support Plan will be subject to the approval of the Designated Manager (Special Guardianship Support). Local arrangements will determine whether any additional approval is required for changes to financial support.

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.

14. Financial Support

Click here to view the Special Guardianship Financial Support Policy.

15. Urgent Cases

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. The approval of the Designated Manager (Special Guardianship Support) will still be required. The local authority will need to review the provision as soon as possible after the support has been provided in accordance with the procedures set out above.

16. Special Guardian Duty on the Death of the Child

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.

Appendices

The first 4 appendices for this chapter can be found on Bexley's local directory.

  • Appendix 1: Financial Support Application Form;
  • Appendix 2: Special Guardian Allowance Review of Child's Needs;
  • Appendix 3: Post Special Guardian Support Assessment of Need;
  • Appendix 4: Outcome of Special Guardianship Allowance Review Letter.

Please see: N:\Directorate of Social & Community Services\Children & Families\Strategies Policies & Procedures\Adoption and Permanence

Appendix 5: 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.