In June 2020 the Family Justice Council (“FJC”) published its report on how to achieve best practice with respect to special guardianship orders. The report arrives in a climate where in recent years, family courts have made more special guardianship orders than placement orders and the proportion of special guardianship order has risen whilst the proportion of placement orders has fallen.
The key themes of the recommendations contained in the report are as follows:
(1) to ensure full and comprehensive assessments are undertaken of prospective special guardians and that sufficient time is afforded to local authorities to undertake these assessments;
(2) where there is little, or no, prior connection/relationship between the child and the prospective special guardian it is very likely to be in the child’s best interests that the child is cared for on an interim basis by the prospective special guardian before any final consideration is given to the making of a special guardianship order (“SGO”);
(3) the special guardianship support package should be based on the lived experience of the child and of the proposed special guardian and must be a comprehensive plan based on the assessed needs of the individual child and of the proposed special guardian; and
(4) the plan should include clear provisions for the time the child will spend with his parent(s) or former carers and the planning of and support for the contact arrangements.
The FJC makes four recommendations for immediate change. These are:
(a) more robust and more comprehensive special guardianship assessments and special guardianship support plans, including a renewed emphasis on: (i) the child-special guardian relationship, (ii) special guardians caring for children on an interim basis pre-final decision and (iii) the provision of support services;
(b) better preparation and training for special guardians;
(c) reduction in the use of supervision orders with special guardianship orders;
(d) renewed emphasis on parental contact
The four recommendations for longer-term change are:
(a) on-going review of the statutory framework;
(b) further analysis and enquiry into: (i) review of the fostering regulations, (ii) the possibility of interim special guardianship orders, (iii) further duties on local authorities to identify potential carers, (iv) the need for greater support for special guardians;
(c) a review of public funding for proposed special guardians;
(d) effective pre-proceedings work (including the use of Family Group Conferences or a similar model) and the use of the Family Rights Group’s Initial Family and Friends Care Assessment: A good practice guide (2017) to identify those family members or friends who are a realistic option to care for a child
In addition, the report contains a best practice guidance which the FJC recommends is issued by the President of the Family Division immediately on the understanding that every case will be decided on its own facts. This has been welcomed by the President who has said that the guidance should be used now in every case where a special guardianship order is an option. Naturally, this will require the judiciary, the legal profession and social work professionals to all have regard to this new guidance.
A reading of the practice guidance is essential, but I think that the following five points in particular should be noted:
• Where proceedings have commenced, all parties (including the Child’s Guardian) should file and serve position statements in advance of the first CMH to include outline details of proposed carers for assessment by the local authority
• The Child’s Guardian’s initial analysis/position statement should explicitly address the identification of carers and their contact details
• The report says that evidence strongly indicates that the primary duties and responsibilities towards the child and the prospective special guardian have become compromised by a system that is being driven by the statutory duty to complete proceedings within 26 weeks. Where care proceedings are now authorised beyond 26 weeks, the case will need to be removed from the CMS 26-week track and entered into a separate database.
• Where the interim plan for placement of a child with a proposed special guardian is endorsed by the court it will need to establish: (i) the legal framework that authorises placement with that person, (ii) the period of time required for a robust evidence base to be established about the quality of care provided by the proposed special guardian that will inform the court report, and (iii) a timetable for resolving outstanding issues before a final order is made (it being anticipated that this will be no more than 12 months from the interim placement with the proposed special guardian).
• The purpose of an SGO is to provide a firm foundation on which to build a lifelong permanent relationship between the child and the carer. A supervision order should not need to be used as a vehicle by which support and services are provided by the local authority. All support and services to be provided to the special guardian and to the child by the local authority or other organisations should be set out in the special guardianship support plan which should be attached as an appendix to the order. The cases where it would be appropriate or necessary to make a supervision order alongside an SGO will be very small in number.
