Special Guardianship Orders - A Guide for Grandparents

[Alison J Stevens]

      Special Guardianship Orders - A Guide for Grandparents   
                        

Special Guardianship Orders will be of particular interest to granSpecial Guardianship Orders - A Guide for Grandparents    dparents and other kinship carers or foster carers who have or wish to have children live with them.

Foster parents may also applying for a Special Guardianship Order should they wish to secure a legal arrangement which enables their long term care of a foster child. Unlike adoption, a Special Guardianship Order does not sever all legal ties with the birth family.

What is a Special Guardianship Order?

A Special Guardianship Order grants an individual (or more than one person) certain rights in relation to children named in the order. Those rights include:

1.       parental responsibility;

2.       the right to take the children abroad for a period of less than 3 months;

3.       the right to make decisions which affect the named child to the exclusion of any other person who holds parental responsibility for the child unless related to matters where the law requires that the consent of each party with parental responsibility is given;

Examples of matters where a Special Guardian cannot independently overrule the rights of others with parental responsibility include:

a.     changes to a child's surname;

b.     granting permission for the child to marry if between the age of 16 and 18;

c.     over the placing of the child for adoption;

d.     consent to a child being sterilised;

e.     granting parental responsibility to a father or step parent via  Parental Responsibility Agreements.

         Examples of matters where the Special Guardian would not need the consent of others include decisions about religion, medical treatment, school selection and other matters related to day to day care.

While a Special Guardianship Order is in force no one other than the Special Guardian can remove the child from the Court’s jurisdiction (e.g. England and Wales) without the written consent of every other person who holds parental responsibility for the child or the leave of the Court.

What effect does Special Guardianship have if the children are in Local Authority care?

A Special Guardianship Order automatically discharges a Care Order previously granted to Local Authority.

Can a Special Guardian nominate another person as a guardian for the children in a will?

Yes.

How long does a Special Guardianship Order last?

You will remain a Special Guardian until the child reaches the age of 18 unless the Court discharges the order at a later date.

Can I apply for a Special Guardianship Order?

You have the right to apply for a Special Guardianship Order if:

1.      You are the child’s guardian (e.g. named in the parent’s will).

2.     You have a Residence Order made in your favour in respect of the child.

3.      The child has lived with you for at least three years.

4.     You have been appointed as a foster parent and the child has lived with you for at least 12 months immediately prior to your application.

5.     If a Residence Order is in force, and you have the consent of each of the persons in whose favour the Residence Order was made.

6.     If the child is in the care of the Local Authority, and you have the Local Authority’s consent to apply.

7.     If no Residence Order is in force and the child is not in the care of the Local Authority, you have a right to apply if you have the consent of each party who has parental responsibility for the child.

8.     You have sought the Court’s permission to apply for Special Guardianship.

Can more than one person be named as a Special Guardian

Yes, and it is possible to make a joint application.

Can parents apply for a Special Guardianship Order

No (at least not for their own children).

Are there any other restrictions on applying for a Special Guardianship Order?

Yes. Three months prior to making your application, you must write to the Local Authority where the child is normally resident informing them of your intention to do so.

If you need to ask the Court’s permission to apply for a Special Guardianship Order, the Court’s permission must be granted prior to your contacting the Local Authority.

Following receipt of your notification, the Local Authority must investigate your suitability to act as a Special Guardian and prepare a report for the Court. The Court cannot grant a Special Guardianship Order unless it is in receipt of the report from the Local Authority.

The Local Authority report must details of:

1.       the child’s circumstances including whether or not they have brothers or sisters;

2.       the relationship they have with other members of their family;

3.       arrangements for contact with the other members of the family;

4.       consideration of the child’s educational, religious and cultural needs;

5.       the child’s wishes (if the child is old enough to understand);

6.       information about both parents’ relationship with the child and their circumstances;

7.       the parents’ wishes;

8.       the circumstances and wishes of the person applying to become a special guardian and their willingness to accommodate the child’s and parents’ wishes;

9.       the prospective Special Guardian’s parenting ability and their reasons for applying;

10.    medical information in relation to the child, the parents and the person applying to become the Special Guardian;

11.    an assessment as to how Special Guardianship would meet the child’s needs in comparison to other forms of Court Order and whether these may be more suitable.

12.    what level of support services the Local Authority intends to provide;

13.    details of the Local Authority’s previous involvement with the child and family.

Can the Court grant a Special Guardianship Order even when no application has been made?

Yes, if the Judge believes the Order to be in the children’s best interests. However, the Court must first direct that Social Services prepare a report and consider the contents of that report prior to making the Order.

When Social Services prepare a report, should this include the opinions and circumstances of the birth parents?

Yes.

What do I do if I disagree with the decisions being made by a Special Guardian in relation to the child?

Ideally, you should first attempt mediation to resolve your differences of opinion. Any holder of parental responsibility who disagrees with the decisions being made by a Special Guardian can also ask the Court for permission to apply for a Special Issue Order or Prohibitive Steps Order to resolve the disagreement.

Is there support and advice available for Special Guardians and families affected by this type of Order?

Yes. If the child was in the care of the Local Authority, the Local Authority must carry out an assessment to determine what support will be required which might include counseling, facilitating contact with other family members, financial assistance, or mediation.

If the child was not in Local Authority care, then the Local Authority may carry out an assessment as to the level of support required if requested to do so by the child, the parents, the Special Guardian or any other individual who has a significant relationship with the child.

What are the differences between a Special Guardianship Order, a Residence Order, and Adoption?

Key Differences / Similarities	SGO	RO	Adoption
Grants Parental Responsibility to the holder	YES	YES	YES
Prevents other holders of parental responsibility from making applications to the Court unless they have the Court’s permission	YES	NO	YES (severs all pre-existing legal ties)
Grants greater rights than for other holders of parental responsibility.	YES	NO	N/A
Removes all legal rights of other holders of parental responsibility	NO	NO	YES
Normally lasts until the child is:	18	16	Permanent
Removes the parents’ obligations to financially support the child	NO	NO	YES
Enables the holder to receive child benefit, and tax credits.	YES	YES	YES
Possibility of financial support from the Local Authority (means tested)	YES	NO	NO
Possibility of assistance with legal costs by the Local Authority	NO	YES	YES

What forms need to be completed?

You must complete Court Forms C1 and C13a.

If you are using the services of a solicitor, they will do this for you.

Remember that:

1.       three months prior to making your application, you must write to the Local Authority where the child is normally resident informing the authority of your intention to do so.

2.       If you need the Court’s permission to apply, you should seek this prior to contacting the Local Authority.

Where can I obtain the forms?

You can get the forms from our Court Forms page, or from your local Court administration department, or by visiting Her Majesty’s Court Service website at:

www.hmcourts-service.gov.uk

Court staff can advise you as to what else you need to do.