Anna Johnstone, Trainee
The new special guardianship provisions, provided for in the Adoption and Children Act 2002 (the Act), came into force on 30 December 2005. Section 115 of the Act introduces a new legal status for non parents who are or wish to care for children in a long term, secure placement. The concept of a special guardianship order (SGO) tends to lend itself to ‘looked after’ children but it can equally be of relevance to a non looked after child who, for example, is cared for by relatives. Section 115 incorporates ss 14A–G which have now been inserted after s 14 of the Children Act 1989 (CA 1989). A full understanding of the new special guardianship provisions also requires reading of the Special Guardianship Regulations 2005 (SI 2005/1109) and the Special Guardianship Guidance (2005), both of which have been produced by the Department for Education and Skills (DfES).
Special guardianship is the result of the Prime Minister’s Review of Adoption (Cabinet Office, 2000) and the subsequent White Paper, Adoption: the new approach, Cm 5017 (DfES, 2000). The Guidance provides a helpful background to SGOs and outlines the findings of the Review and White Paper; both of which were also reviewed by Julia Nelson in her article ‘Special Guardianship Orders – an Introduction’ [2005] Fam Law 573. In brief, the Review reported that children tended to prefer the sense of security that adoption could offer over long term fostering. However, a number of children, particularly older children, were reluctant to sever ties from their birth family, therefore making adoption an inappropriate option. The need for a new legal status for carers was identified which could accommodate this apparent gap in the law. The White Paper stated that this new special guardianship status should form a firm foundation upon which to build a lifelong relationship between the child and the carer.
KEY FEATURES OF SPECIAL GUARDIANSHIP ORDERS
Comparisons between SGOs and residence orders and adoption orders have naturally been drawn. It can be rightly said that the new special guardianship status appears to be a halfway house between residence and adoption orders in terms of the level of responsibility given to the non parent carer and in the perception of the permanency of the placement. However the SGO also introduces some unique features in its new legal status.
THE APPLICATION
A SGO appoints a person or persons to be a child’s special guardian. The special guardian must be over 18 and must not be the child’s parent. Joint applicants need not be married. The following persons are entitled to apply for a SGO:
- any guardian of the child;
- any person in whose favour a residence order is in force;
- a local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application;
- any person with whom the child has lived for a period of at least 3 out of the last 5 years;
- any person who has the consent of the following:
– those persons in whose favour there is a residence order in respect of the child;
– the local authority, when the child is looked after; or
– in any other case, each of those who have parental responsibility.
All other persons must obtain the leave of the court to make an application (s 14A(3)(b)). A local authority cannot apply for a SGO on an individual’s behalf. The court can also make a SGO in any family proceedings in which a question arises with respect to the welfare of the child, even if no application has been made (s 14(6)(b)).
Before an individual makes his application he must first give at least 3 months written notice to the local authority of his intention to do so (s 14A(7)). The only exception to this rule is if a person has the court’s leave to make a competing SGO application when an application for an adoption order has already been made. This is in order to ensure that the adoption application is not delayed (Guidance, at para 10).
If the child is looked after then the written notice would be given to the local authority in which the child is being looked after. Otherwise, it would be the local authority in which the applicant is ordinarily resident. The local authority is then under a duty to investigate the matter and prepare a court report as set out in s 14A(8). The local authority can make whatever arrangements it sees fit for the production of this report (s14(10)). The report must be prepared by a ‘suitable qualified and experienced’ person (Guidance, at para 106). If appropriate, the court may ask the local authority to carry out this investigation and prepare the report. This particular provision would presumably be of use when the court is considering making an SGO in existing proceedings. What is expected to be the content of this report has been set out in great detail in the Schedule to the Regulations.
When deciding if a SGO should be made, the court must have regard to the welfare checklist in s 1 of the CA 1989. The Act also states that the court should not make a SGO without a properly prepared report. The Association of Directors of Social Services’ (ADSS) official response in July 2004 to the DfES’ consultation document on care planning and special guardianship raised concerns about this new duty on local authorities. In particular, the ADSS envisaged that those most likely to utilise the special guardianship provisions would be family members or those with residence orders in respect of children who are unknown to social services. In such circumstances, extensive investigations would have to take place to produce a detailed report, placing a massive burden on social services departments. ADSS suggested that 40 weeks would be a more appropriate time frame rather than 3 months. The legislation does not actually state that the report must be finalised by the time of the court application. It seems that the court may have to make an appropriate direction for filing of the same when the local authority has been unable to complete its report by the time the court comes to deal with the application.
EFFECTS OF A SPECIAL GUARDIANSHIP ORDER:
Parental Responsibility
Upon the making of an SGO, a special guardian acquires parental responsibility for the child in question (s 14C). Parental responsibility is shared with those who already possess the same. This is, of course, different from an adoption order where the birth parents lose parental responsibility entirely. The special guardian is entitled to exercise parental responsibility to the exclusion of any other person holding it, except another special guardian. The clear intention of this provision is to allow the special guardian to assume the proper authority to make day to day decisions concerning the child. An SGO may, therefore, be particularly appropriate in circumstances where birth parents, or others with parental responsibility, have a history of unreasonably withholding their consent and disrupting an otherwise secure placement. Unlike a non-parent who is caring for a child under a residence order, a special guardian can also appoint a guardian for the child in the event of his death (s 14G(4)).
There are, however, limitations to the SGO. The special guardian cannot change the child’s surname or remove the child from the country for longer than 3 months without the written consent of all those with parental responsibility or an order of the court (which can be made at the same time as the SGO). The Act also provides that the consent of all those with parental responsibility must be obtained where any enactment or rule of law requires the same, eg sterilisation of a child. As with a residence order, the birth parents retain the right to consent or withhold consent to the child’s adoption or placement for adoption. Special guardians cannot give their consent to the adoption of a child.
Contact with birth parents
Just as when a child lives with a carer under a residence order, the child’s parent can apply to the court for a contact order at the same time as an SGO is made or at any time after. Before making a SGO, the court is obliged to consider if a contact order should also be made with respect to the child and if any existing s 8 order should be varied or discharged (s 14B(1)). The child’s level of contact with the birth family will be something that the local authority will have been expected to considered in its court report. In contrast, although an adoption judge has the power to make a s 8 contact order, it is unusual for it to happen against the adopters’ wishes.
DISCHARGE AND VARIATION OF A SPECIAL GUARDIANSHIP ORDER
The child’s parent can apply to the court to have a SGO varied or discharged. However, the threshold for revoking a SGO is higher than that for a residence order and is set out in s 14D. A special guardian, any individual in whose favour a residence order is in force and a local authority with a care order can apply to vary or discharge a SGO. The following persons can also apply to the court for discharge or variation if leave is first obtained: a parent (including a step parent with parental responsibility), guardian, individual who had parental responsibility immediately before the SGO was made and finally the child himself. Leave will only be granted to the child if the court considers that he has sufficient understanding to make the proposed application. Leave will be granted to those others listed if the court is satisfied that there has been a significant change in circumstances since the SGO was made. Again, the court will have regard to the welfare checklist when making a decision. An adoption order, in contrast to both an SGO and residence order, cannot be revoked.
DURATION OF A SPECIAL GUARDIANSHIP ORDER
In what is obviously an attempt to underline the permanent nature of a special guardian in a child’s life, the Act provides that a SGO will not automatically end upon the subsequent making of a care order (para 68 of Sch 3 amends s 91(5) of the CA 1989). This is to ensure the possible return of the child to the special guardian at some future date. It will, of course, be open to the local authority to apply to discharge or vary the SGO if appropriate. This is in contrast to a residence order which, by its nature, has to end on the making of a care order.
The 2002 Act now means that the court can permit a residence order to remain in force until the child reaches the age of 18 years as opposed to the earlier 16 years of age (s 114(1)). An adoption order is life long, unless the child is adopted by another or is set aside, which would only be in exceptional circumstances. The SGO will remain in force, unless varied or discharged, until the child reaches 18 years. However, the real emphasis behind the SGO is to foster a life long relationship between the child and the carer. The success of this as a concept may well require proper investment in the placement by means of the various support services that have been provided for in the Act.
SPECIAL GUARDIANSHIP SUPPORT SERVICES
A drawback for many non-parent carers who possess a residence order is that the order does not guarantee any form of support services. Those with a residence order can access services through the general framework of support for children in need under s 17 of the CA 1989 or through a residence order allowance which is payable at the discretion of the local authority. However, the obvious budgetary restraints on local authorities means that, in reality, financial support is limited. The Guidance states that financial issues should not be the sole reason for a special guardianship arrangement failing to survive (at para 37).
The new s 14F sets out possible support services, including counselling, advice, information and financial support. The procedure for assessment, provision of support and representations can be found in detail in the Regulations and Guidance, which are virtually identical to those provided for adoption. This appears to confirm that the government wants SGOs to be seen as a permanent arrangement. The DfES has also produced a suggested model means test for adoption and special guardianship support payments. The definition of financial support for special guardians can be found in chapter two of the Regulations, one example being assistance with the legal costs of a court application. Special guardians, the child and parents may be able to access discussion groups, mediation services in relation to contact, services in relation to the child’s therapeutic needs and assistance for the purpose of ensuring the continuance of the relationship between the child and the special guardian (including training, respite and mediation).
When the child in question is, or has been immediately before the making of an SGO, a looked after child the following people, at their request, ‘must’ receive an assessment for services: the child, special guardian (including a prospective special guardian) or a parent. When the child is not looked after, these persons (and any other defined person) only ‘may’ be offered an assessment (reg 11). The Guidance states that non looked after children must not be unfairly disadvantaged by this approach, especially given that it may be that the only reason a child is not looked after is that relatives intervened quickly to assist.
Obviously, it is yet to be seen who will obtain access to such valuable resources. The joint adoption and special guardianship support services grant is intended to help local authorities with funding. It is unknown how long this money will continue to be ring-fenced. Given the other pressures on funding, there may be variations across the country on how the duty to assess actually relates to real financial support, particularly in situations involving non-looked after children.
FOSTER CARERS
SGOs do appear to offer a real alternative to long term foster placements. In circumstances where adoption is not a realistic option for an older child in care, a SGO can offer a child a real sense of security. A child will no longer be considered looked after once an SGO has been made, thereby potentially allowing older children (who may resent social worker visits or the stigma of being ‘in care’) to achieve a sense of normality. After a SGO is made local authority foster carers, who previously received an element of remuneration, can continue to receive this for up to 2 years or even longer in exceptional circumstances (reg 7).
Any child who was looked after immediately before the making of a SGO may also qualify for the advice and assistance available for care leavers. The young person must be between 16 and 21 years of age to access such services (Guidance, at para 20).
CONCLUSION
Overall it is clear that SGOs provide a welcome and positive alternative for those children in foster care who the Prime Minister’s Review identified as lacking a sense of security and permanency. The order is also likely to be of real benefit in circumstances where those with parental responsibility are non-contactable or uncooperative with a non parent carer.
It is less clear whether existing holders of residence orders, where the above concerns do not apply, would necessarily see major benefits in seeking a SGO. However, if future circumstances led to the involvement of the local authority, resulting in advice and encouragement to apply and with some prospect of real support, then an SGO would undoubtedly help to provide more stability for the child.
For further information contact a member of the family law team or call 020 7940 4000.
