At the conclusion of public childcare proceedings, the Court has a number of options for what to do with a child if it would not be viable for them to return home. These include a care order, a child arrangements order, a supervision order, or – the topic of this article – a special guardianship order. But what exactly is a special guardianship order?
Special guardianship orders (hereon referred to as ‘SGOs’) are technically a private law order made under the Children Act 1989, however the Court is able to order them in public proceedings. The statutory provision can be found within the Children Act 1989 at Part II, section 14A, and is defined as an order appointing one or more individuals to be a child’s “special guardian.” Unlike adoption, the SGO is not a lifelong order and ceases upon the child’s eighteenth birthday, and it does not end the child’s relationship with their birth family. The effect of the order is that it grants overriding parental responsibility to the special guardian (whilst they may still have shared PR with another, the special guardian has the final say on decisions made about the child), without legally and permanently changing relationships with the child’s parents. The following people may be eligible to apply for a SGO in relation to a child:
- Those who already have a child arrangements order for the child;
- A relative (but not the birth parents) when the child has lived with them for at least one year;
- A guardian appointed by the parent or special guardian to look after the child upon their death;
- A person who has the consent of each named person named in a child arrangements order;
- A person with whom the child has lived for a period of at least 3 years’
- 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 over the age of 18 (other than a parent) with the leave of the Court.
The key difference between an SGO and a care order is that, once the SGO is made, the child is no longer deemed to be ‘in care’. Whilst this does mean that there is less local authority support than if a care order were in place, the local authority must produce an SGO support plan before an order is made, to set out what support (including financial support) the special guardian is entitled to. Any person who wishes to make an application for an SGO must notify the local authority in writing three months before submitting their application to the Court, and the local authority must thoroughly assess the proposed special guardian and prepare an SGO assessment document for the proceedings.
It may be possible (depending on the circumstances of the case) for a child under an SGO to have greater chance to retain their relationship with their birth parents or siblings, through post-separation contact. Given the president of the family division’s guidance on the necessity of post-adoption contact (which is touched upon in my earlier article ‘Post-Adoption Contact – A Decision for the Court, not the Local Authority’), it is not a dramatic leap to suggest that this would be in the child’s best interests and would help them to keep a sense of identity which in turn may benefit their mental well-being. Further, an SGO grants greater stability for the child – in theory, the child will remain with the special guardian until they’re eighteen, whereas under a care order there is a possibility that the child will not remain with the same foster carers throughout and may experience a lot of movement between placements.
There has been issue in the past of SGOs not being granted owing to time constraints (in public childcare proceedings, relevant guidance sets out that proceedings should be concluded within 26 weeks of issue – though this often is not the reality!). Most notably, in Re P-S [2018] EWCA Civ 1407, the Judge made what he referred to a “time limited” care orders in respect of the children, as the parents, LA and the guardian had supported SGOs being made in favour of the children’s grandparents but no formal application had been made. On appeal it was determined that it the 26-week timetable could be extended to deal justly with those proceedings, so that proper SGO assessments could be undertaken and the children would not suffer the disservice of being subject to a care order when there is a possibility of an SGO being a viable option. The Family Justice Council drafted interim guidance on special guardianship shortly thereafter which confirms that an extension of the 26 weeks is justified where the possibility of SGOs is raised, and although finalised guidance is awaited it is clear to the writer that the SGO is seen as the more preferable option of the two!
Please note that this article refers to special guardianship orders only in the context of care proceedings. Members of Becket Chambers can assist with public childcare matters. Please contact Clerks on 01227 786331 or via clerks@becket-chambers.co.uk for further details.
