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Special Guardianship Orders

If you are caring for a child that is not your own because their parents are not able to look after them you can obtain an order giving you legal recognition and responsibility and, in some cases, practical and financial support that may be required.

Our experienced team of solicitors are able to offer specialist advice and guide you through what can be a daunting and complex process; whether you require a one-off advice session or representation in obtaining a special guardianship order.

What is a special guardianship order?

A special guardianship order is an order made by the court appointing a person as a child’s ‘special guardian’ – placing that child in the permanent care of someone who is not their parent but, who wishes to care for the child in the long-term and within a secure placement.

A special guardianship order gives the special guardian parental responsibility for the child. Subject to any other order made, the special guardian has ‘enhanced’ parental responsibility; meaning (with certain exceptions) they can exercise their parental responsibility for the child, to the exclusion of all other persons with parental responsibility. A special guardianship order therefore reflects the reality of the situation in respect of that child; giving the special guardian clear responsibility for all the day to day decisions about caring for the child and their upbringing, whilst the child’s parents retain parental responsibility for the child but their ability to exercise it is limited.

A special guardianship order can also be accompanied by access to a full range of advice and support services including practical and, where appropriate, financial support.

How do I apply?

Applications may be made by an individual or jointly by two or more people to become special guardians. Joint applicants do not need to be married. Special guardians must be 18 or over.

A court may make a special guardianship order in respect of the child on the application of a number of people, including:

  • any guardian of the child.
  • a local authority foster carer with whom the child has lived for one year immediately preceding the application.
  • anyone who holds a child arrangement order with respect to the child, or who has the consent of all those in whose favour a child arrangement order is in force.
  • anyone with whom the child has lived for three out of the last five years.
  • where the child is in the care of a local authority, any person who has the consent of the local authority.
  • anyone who has the consent of all those with parental responsibility for the child.
  • any person, including the child, who has the leave of the court to apply.

The court may also make a special guardianship order in any family proceedings concerning the welfare of a child if they consider an order should be made. This applies even where no application has been made and includes adoption proceedings.

Anyone wishing to apply for a special guardianship order must give their local authority 3 months’ written notice of their intention to apply to the Court for this order. When the local authority receive notice of an application, or if the court requests, that local authority must carry out an assessment and prepare a report for the court, setting out their views as to whether the applicant(s) are suitable special guardians for the child. This assessment will include information about the child, their family, the prospective special guardian(s), the implications of making a special guardianship order, any other possible orders available and will also consider the child’s wishes and feelings. It will confirm the local authority’s recommendation as to whether a special guardianship order should be made and will also consider matters such as ongoing contact with the birth parents and wider family members and friends and also whether any additional support services, or practical or financial assistance may be required.

The court may not make a special guardianship order unless it has received this report, assessing whether the applicant(s) are suitable.

What will the Court look at?

As with all applications concerning children, when considering whether to make a special guardianship order, the Court’s paramount consideration is the welfare of the child concerned.

The Court will also have regard to:

  1. the wishes and feeling of the child concerned (as far as they can be obtained and in light of the child’s age and level of understanding);
  2. the child’s physical, emotional and educational needs;
  3. the likely effect on the child of any change in his/her circumstances;
  4. the child’s age, sex, background, and any other characteristic which the court considers relevant;
  5. any harm which the child has suffered or is at risk of suffering;
  6. how capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs;
  7. the range of powers available to the court under the Children Act in the proceedings in question.

Before making a special guardianship order, the court must consider whether there are any existing orders, such as a child arrangements order and whether it is necessary to vary or discharge these, or make such an order in addition to a special guardianship order, such as a child arrangements to set out the arrangements for the child to spend time with their parents.

The need for a special guardianship order can arise in all sorts of situations; whether there has been social service involvement in respect of the child you are caring for, or simply from an informal arrangement. Whatever the circumstances, if you are or are planning to care for a child that is not your own, it is always necessary to seek specialist advice and one of our experienced team of childcare solicitors can answer any questions you may have.