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6.2.14 Applications for Special Guardianship Orders

RELEVANT GUIDANCE AND INFORMATION

DfE, Special Guardianship Guidance (January 2017)

Adoption Support Fund

RELATED CHAPTERS

Permanence Policy and Practice Guidance

Court Reports in Adoption/Special Guardianship Guidance

AMENDMENT

In February 2018, this chapter was extensively updated and should be re-read throughout.


Contents

1. Introduction
2. Who may Apply?
3. Parental Responsibility
4. The Circumstances in which a Special Guardianship Order may be Made
5. Assessment of Suitability of Placement and Order
6. Special Guardianship Support
  6.1 Entitlement to Assessment for Special Guardianship Support (including financial support)
  6.2 Assessment for Support
  6.3 The Special Guardianship Support Plan
  6.4 Financial Support
  6.5 Approval of Support Plan
  6.6 Review of Special Guardianship Support Plan
7. Approval of Special Guardianship for Looked After Children
8. Report to the Court
9. Variation and Discharge of Special Guardianship Order
10. Urgent Cases
11. Special Guardian Duty on the Death of the Child
12. Supporting Documentation


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 can meet 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 also provides 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.

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

A Special Guardianship Order made with respect to a child who is the subject of a Care Order or for an order for contact to a child in care discharges those orders.

A Care Order, however, does not automatically revoke a Special Guardianship Order although the Special Guardian's exercise of Parental Responsibility is restricted as the local authority has 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 Policy and Practice Guidance.

Please also see flowcharts for CLA and non CLA children subject to SGO process.


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 and must not be a parent of the child in question.

Subject to giving notice to the relevant local authority, the following people are entitled to apply for a Special Guardianship Order without needing to first seek the leave of the court:
  • 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];
  • Any person who is named in a child arrangements order as a person with whom the child is to live;
  • Any person 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 a period of at least three years (which need not be continuous, but must not have begun more than five years before, or ended more than three months before, the making of the application);
  • A relative with whom the child has lived for a period of at least one year immediately preceding the application;
  • Where the child is in the care of a local authority, any person who has the consent of the local authority;
  • Any person who has the consent of all those with parental responsibility for the child;
  • Any other person, aged 18 or over (other than a parent) may apply for a Special Guardianship Order if he or she has 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, subject to any other order in force, 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. The Special Guardian must also take reasonable steps to inform the parents if the child dies (see Section 11, Special Guardian Duty on the Death of the Child).

In addition there are certain steps in a child's life which require the consent of everyone with Parental Responsibility or the leave of the court, for example:

  • Causing the child to be known by a different surname; or
  • Removing the child from the United Kingdom for longer than three months;
  • The sterilisation of a child.

The court may, at the time of making the Special Guardianship Order, give leave for the child to be known by a new surname and/or to be removed from the United Kingdom for longer than three months, either generally or for specified purposes.

For the avoidance of doubt, a child is any child or young person under the age of 18 years.


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.

On receipt of a written notification, once allocated via the Safeguarding Hub, the Team Manager will allocate the case to a Social Worker in the team who is suitably qualified to undertake the assessment.

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 (please see Template Initial Letter - Special Guardianship Assessment and CoramBAAF leaflet).


5. Assessment of Suitability of Placement and Order

The allocated Social Worker will arrange a Permanence Planning Meeting within the 2 weeks from the notice being received in the area team. 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 and met.

The Special Guardianship Report which Cumbria provides will address the information required by the schedule to the Special Guardianship Regulations. The court may not make a Special Guardianship Order unless it has received the report covering the suitability of the applicants.

See Court Reports in Adoption/Special Guardianship Guidance for the requirements for inclusion in the report.

There will be a Health Assessment of the proposed Special Guardian, external agency checks (including a Disclosure and Debarring Service disclosure) and referees will be consulted.

Once the court report is completed and recommendation reached this should be submitted by the author(s) to their line manager(s) for quality assurance. The Service Manager will approve the recommendation for an SGO as the appropriate plan for the child.

If the child is Looked After and the application has been agreed by the Permanence Panel 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).


6. 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 below);
  • 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 Permanence Panel.

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 three 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 excluding any financial support which has been agreed before the Special Guardianship Order was made as this 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.

6.1 Entitlement to Assessment for Special Guardianship Support (including financial 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.

Requests for assessments for special guardianship support (including financial) will be presented to the permanence panel for agreement, or not, of this request. Regulations will be taken into consideration when making this decision (see The Special Guardianship (Amendment) Regulations 2016).

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 (see Template Letter Decline Application for Assessment for Special Guardianship Support Services).

6.2 Assessment for Support

Where it has been agreed to conduct an assessment, this should be based on the Assessment Framework under Working Together and include the following:

  • The developmental needs of the child;
  • 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.

At the end of the assessment of support needs, the draft support plan will be considered by the Permanence panel who will 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.

6.3 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.

The Plan should be completed on the agreed template and be written in such a way that everyone affected can understand (see Special Guardianship Support Plan):

  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.

6.4 Financial Support

Financial issues should not be the sole reason for a special guardianship arrangement failing to endure. Financial support is payable to facilitate arrangements for a person to become the child’s special guardian, where this is considered to be beneficial to the child’s welfare and to support the continuation of these arrangements after the order has been made.

Cumbria will ensure that special guardians and prospective special guardians are aware of all the benefits and tax credits available to them. Financial support paid cannot duplicate any other payment available to the special guardian so Cumbria will take account of any grant, benefit or allowance which is available in respect of the needs arising as a result of becoming a special guardian of the child.

Regulation 6 sets out the circumstances in which financial support may be paid to a special guardian or prospective special guardian. These are:

  • Where it is necessary to ensure that the special guardian or prospective special guardian can look after the child;
  • Where the chid needs special care which requires a greater expenditure of resources than would otherwise be the case because of illness, disability, emotional or behavioural difficulties or the consequences of past abuse or neglect;
  • Where the local authority consider that it is appropriate to contribute to any legal costs, including court fees, of a special guardian or prospective special guardian associated with:
    1. The making of a special guardianship order or any application to vary or discharge such an order;
    2. An application for an order under section 8 of the Act;
    3. An order for financial provision to be made to or for the benefit of the child.
  • Where the local authority consider it appropriate to make a contribution to the expenditure necessary for the purpose of accommodating and maintaining the child, including the provision of furniture and domestic equipment, alterations to and adaptations of the home, provision of means of transport, provision of clothing, toys and other items necessary for the purposes of looking after the child.

Payment of financial support for special care is intended when the child’s condition is serious and long term. For example, where a child needs a special diet or where items such as shoes, clothing or bedding need to be replaced at a higher rate than would normally be the case with a child of similar age who was unaffected by the particular condition.

The special guardian’s financial circumstances will always be considered when ongoing financial support is being considered. They will therefore be asked to complete a financial assessment form, which on completion, must be passed to the Finance Officer responsible for carrying out means tested assessments (see Guide to Assessment of Financial Support).

Once the means tested assessment has been carried out, the Finance Officer will send written notification of the outcome to the relevant Social Worker, who will present this as part of their draft support plan to the Permanence Panel for their approval.

The outcome of the financial assessment will then be written into the support plan.

Where the Special Guardians were previously the child’s foster carers, the local authority will maintain payments for a transitional period of two years- the regular weekly fostering allowance (minus child benefit) and the carer fee for the first year, and the regular weekly fostering allowance (minus child benefit) alone for the second year. This will give the family time to adjust to their new circumstances. If having regard to the exceptional needs of the child or any other exceptional circumstances, the local authority consider it appropriate to continue any payment beyond the two years, this will be subject to an annual means tested financial review.

The only circumstance when the local authority MUST disregard means is when providing financial support in respect of legal costs, including fees payable to a court in respect of a child who id Looked After where the local authority support the making of the Special Guardianship Order.

Where Special Guardians are in receipt of financial support, the Central Payments Team will write to them annually, requesting completion of the Financial Assessment Review form, together with a request for information about any changes in circumstances of the child or the Special guardian.

If any change in financial support is considered appropriate, the recommended change will be forwarded to the Senior Manager, Children Looked After, for a decision. Where a change is approved, the Special Guardian should be notified in writing of the change and the reason for this.

Where Special Guardians do not return the Assessment Review forms within the required timescale, the Central Payments Team will send a reminder letter, giving 28 days notice of the suspension of payments if the information requested is not received.

6.5 Approval of Support Plan

Once the draft support plan has been completed the Social Worker will present this to Permanence panel who will decide, on behalf of Cumbria County Council, whether a person has need of special guardianship services. Before this decision is reached, the Special Guardian or prospective special guardian will be given opportunity to make representation.

The Permanence panel decision will be communicated to the applicant and will give notice to the special guardian/prospective special guardian which will contain:

  • A statement as to the outcome of the assessment of the person’s needs for special guardianship support services;
  • Where the assessment relates to the need for financial support, the basis upon which financial support is determined;
  • Whether the local authority propose to provide the applicant with special guardianship support services;
  • The services (if any) which the local authority proposes are provided to the applicant;
  • If financial support is to be paid, the proposed amount that would be payable and any conditions attached to the payment;
  • If proposals are to provide special guardianship support services which require a plan, the notice will be accompanied by a draft plan;
  • Reference will be made to the source of independent advice and advocacy;
  • There will be a 28 day consultation period (see Special Guardianship Draft Support Plan - Proposed Decision).

No final decision will be made until the consultation period has expired or otherwise that representations have been made or notification has been received that the individual is satisfied with the proposed decision. If written representations are made to the administrator, the assessing Social Worker must present these and arrange for the case to be considered by the Permanence panel. The Permanence panel will consider any representations received and then decide whether to provide any services to the person who has been assessed, taking into account the individual circumstances of the case and the resources available locally.

When the final support plan has been agreed, this will be sent to the Special Guardians, within 10 days of the final court hearing or to the Special Guardian if not under the courts’ jurisdiction. The letter with the support plan will include:

  • Details of any plan and person nominated to monitor the provision of the services in accordance with the plan;
  • If financial support is to be payable then further information will be provided:
    1. The method of the determination of the amount of financial support;
    2. If paid in instalments, the amount, frequency, duration and when payments will commence;
    3. If to pay a single payment, when it will be paid
    4. Any conditions payment is subject to, date conditions must be met, consequences of failing to meet conditions.
    5. The responsibilities of the local authority in relation to reviews and of the special guardians pursuant to any conditions for payment (see Letter for the Outcome of Annual Review - Special Guardianship Order and Final Special Guardianship Order Support Plan).

6.6 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.

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.

Notice will be given by the Social Worker to include:

  • A statement as to the outcome of the assessment of the person’s needs for special guardianship support services;
  • Where the assessment relates to the need for financial support, the basis upon which financial support is determined;
  • Whether the local authority proposes to provide the SG with special guardianship support services;
  • The services (if any) that the local authority proposes are provided to the special guardian;
  • If financial support is to be paid, the prosed amount payable;
  • Any conditions attached to the payment;
  • If proposals are to provide special guardianship support services which require a plan, the notice will be accompanied by a draft plan (see Letter for the Outcome of Annual Review - Special Guardianship Order).

After considering any representations, or after the period of 28 days has elapsed, the Team Manager will give the special guardian notice of their decision including the reasons. Where resolution cannot be reached the matter will be returned to the Permanence Panel (see Template Letter Final Decision - Special Guardianship Review).

Where Cumbria County Council provides financial support payable periodically the financial support must be reviewed on receipt of the annual statement from the special guardian. Any relevant change in circumstances, notifications or breach of conditions will trigger a review at any point in the implementation of the plan (see Letter for the Outcome of Annual Review - Special Guardianship Order).


7. Approval of Special Guardianship for Looked After Children

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).


8. 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 Placement Order Applications and Adoption/Special Guardianship Guidance for what is required to be included in the report.

The court is unable to make a Special Guardianship Order unless and until it has received a Special Guardianship Report; however, where the bulk of the information required is already before the court in another format, the local authority is not required to start from scratch. Instead, the local authority should be directed to file a report, which will fulfil the requirements by providing any missing information and by setting out the remaining information in the form of cross-references to the information already before the court in other reports.


9. 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.


10. 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 Senior Manager, Districts 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.


11. 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:


12. Supporting Documentation

See the following documentation:

End