Special guardianship orders (SGOs) and the concept of appointing a person wishing to care for a child long-term as a ‘special guardian’ with a more robust and secure legal basis, introduced by the Adoption and Children Act 2002, was undoubtedly a positive development. Their introduction gives families, prospective carers and local authorities a valuable option when considering alternative long-term care options for a child who cannot remain with their birth parents for whatever reason; providing greater security than long-term fostering but without the absolute legal severance from the birth family that comes with an adoption order.
Last summer, 10 years after their introduction, the Department for Education launched a review of SGOs, to consider their use; to identify the circumstances in which they have been a positive solution for a child and those where their use has resulted in a poor outcome and whether, in these cases, lessons can be learnt.
This review was certainly needed; the use of SGOs has risen considerably in recent years and it is safe to say, the scope of their use and remit of prospective special guardians has far surpassed that envisaged at the time of their introduction.
The review included a ‘call for evidence’ from practitioners, members of the public and from special guardians themselves. It also led to a series of reports, articles and ‘good practice’ guidance.
Law Society Guidance
In September 2015, the Law Society issued guidance and a ‘Response to the Department for Education’s call for evidence’, in which it made a series of recommendations, including for the revision and update of regulations and statutory guidance for local authorities to ensure consistent approaches to, processes and appropriate standards are being applied throughout the UK; in respect of assessments (including a pro-forma report) and of support for placements. It also recommended judicial guidance in the form of a new Practice Direction to underpin such revisions and to ensure the focus remains on why an SGO is the option which would best serve the welfare of the particular child throughout their childhood.
Good practice guidance
In October 2015, joint guidance of ‘good practice’ was issued by the Association of Directions of Children’s Services and CAFCASS, in which concerns were raised about the improper use of special guardianship orders in some care proceedings, where SGOs are made without full and proper assessment and consideration to the suitability and long-term viability of a placement, particularly in the context of the time-restraints we are all now working to within care proceedings following the introduction of the ’26 week timetable’ by the Children and Families Act 2014. It focused on the occasions when a prospective carer comes forward late in proceedings and assessments are rushed, incomplete and examples where SGOs have been made before vital information from police and other crucial checks is not available. It is this which poses the risks.
My experience certainly echoes both. The majority of special guardians are undoubtedly grandparents, or other family members who have a pre-established relationship with the child. In such circumstances assessments are more ‘standard’. The carers are usually known or come forward promptly and information is forthcoming and assessment and checks possible at an early stage. It is where this is not the case and there is no ongoing relationship between the child and prospective carer, whether they be a family member, family friend or other, things are more difficult. It remains an attractive placement option and one that should rightly be explored fully, however it is in these circumstances that care needs to be taken to ensure the assessment is full, detailed and not affected or limited by time or resource-restraints.
Final outcomes for carers
The Department for Education review is now complete and their final report was published in December 2015. The findings concur that the majority of SGOs are made to carers who have an existing relationship with the child and who, with support, fully intend and will be able to care for the child long-term. It recognises, echoing the concerns raised by ADCS and CAFCASS, that it is a minority of cases, where assessments undertake have been rushed or poor quality, that problems arise; usually where carers have come forward late in the proceedings, insufficient consideration was given early in the proceedings to who may be appropriately assessed, or the quality of an initial assessment is challenged and further assessment is undertaken and there is a rush to complete an assessment or re-assessment in the timescales permitted. The findings also reflected that it is the ‘risky’ situations, where a supervision order has been made in conjunction with a SGO because there remains some doubt about the special guardian’s ability to care for the child long-term, particularly where there is little or no pre-existing relationship, that negative outcomes are seen. The third finding relates to the quality of the information and support given to special guardians, both prior to and following placement that leads to problems.
The review unequivocally highlights the importance of high quality and robust assessment of prospective carers, supported by clear explanation and robust analysis of the child’s long-term welfare in that placement. Perhaps common sense and certainly good practice?! – the restraints in which local authority’s and family practitioners work can never be an excuse for ignoring what is at the heart of this work, that the child’s welfare is paramount.
The way ahead
The review records the government’s ‘next steps’ as working to strengthen the assessment process by looking at robustness and consistency; to actively consider whether further changes are required to the legal framework underpinning decisions about SGOs and to consider the support available to children living under SGOs.
This review, its findings, ‘next steps’ and intentions appear to be positive, however it remains to be seen how these will be implemented and whether practices are approaches will change.