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6.2.1 Applications for Special Guardianship Orders

SCOPE OF THIS CHAPTER

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

AMENDMENT

This chapter was updated in May 2012


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 and the Role of the Adoption Panel
  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 Support
  15. Urgent Cases


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 Residence Order.

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 primary responsibility for day to day decision-making in relation to the child.

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.


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:

  • Any guardian of the child;
  • Where the child is subject of a 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);
  • Anyone who holds a Residence Order with respect to the child or who has the consent of all those in whose favour a Residence Order is in force;
  • Anyone with whom the child has lived for three out of the last five years;
  • Anyone who has the consent of all those with Parental Responsibility for the child;
  • Anyone, including the child, who has the leave of the court to apply.

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


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.

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 name of the child;
  • The removal of the child from the United Kingdom for longer than three 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 needs of the child, the suitability of the applicant(s), 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 (DBS) and other statutory checks undertaken for the assessment.

A full list of the matters to be included in the report is set out in Court Reports in Adoption/Special Guardianship Guidance.


6. Approval of Special Guardianship for Looked After Children and the Role of the Adoption Panel

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 Strategic Manager.


7. Report for the Court

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

A full list of the matters to be included in the report is set out in Court Reports in Adoption/Special Guardianship Guidance.

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


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 with a Residence Order in respect of the child 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 the arrangements for the child;
  • 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 Strategic Manager.

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.

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.


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 and include the following:

  • The developmental needs of the child;
  • The parenting capacity of the Special Guardian or prospective Special Guardian;
  • Family and environmental factors for the child;
  • 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 Strategic Manager.

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;
  • 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.

The Plan should set out:

  1. The services to be provided;
  2. The objectives and criteria for success;
  3. Timescales;
  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 Strategic Manager.

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 Strategic Manager 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 Strategic Manager. 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

Special Guardians must be helped to access any benefits to which they are entitled; this will usually include child benefit and tax credits such as Child Tax Credit and Working Tax Credit.

The local authority must also take account of any other grant, benefit, allowance or resource available to the person in respect of his needs as a result of becoming a Special Guardian of a child. Financial support cannot duplicate any other payment available to the Special Guardian.

The Special Guardian's means will usually be considered when ongoing financial support is being considered. They should therefore be asked to complete a Financial Assessment Form, which when completed should be returned to the relevant social worker, who must present this to the Strategic Manager for approval.

The social worker should then write to the Special Guardian setting out the amount of financial support agreed by the Strategic Manager and information in relation to the following:

  • Whether financial support is be paid in regular instalments and if so, the frequency of payment;
  • The amount of financial support;
  • The period for which the financial support is to be paid;
  • When payment will commence;
  • Conditions for continuing payment and date by which conditions are to be met, i.e. returning Review Forms;
  • Arrangements and procedure for review and termination.

Means may be disregarded in relation to:

  • The initial costs of accommodating a child who has been Looked After;
  • Recurring travel costs in contact arrangements;
  • Any special case requiring greater expenditure due to illness, disability, emotional or behavioural difficulties or the consequences of the past abuse or neglect of a child previously looked after.

Where the Special Guardians were previously the child's foster carers - the local authority can maintain the fostering allowance for a transitional period of two years but with discretion to extend if necessary.

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 is Looked After where the local the authority support the making of the Special Guardianship Order.

Where Special Guardians are in receipt of financial support, the social worker responsible for monitoring the Special Guardianship Support Plan will write annually to them with a Financial Assessment Review Form to be completed, together with a request for information about any change in circumstances for the Special Guardian or the child.

If any change in financial support is considered appropriate, the recommended change should be forwarded to the Strategic Manager (for a decision. Where a change is approved, the Special Guardian should be notified in writing of the change, together with the reasons for the change.

Where Special Guardians do not return the Assessment Review Forms within the required time scale, the social worker monitoring the support plan should send a reminder letter, giving 28 days notice of the suspension of payments if the information requested is not received.


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 Strategic Manager 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.

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