4.1.5 Special Guardianship Policy

This chapter was amended in Section 5, Responsibilities for completing assessments of prospective Special Guardians and Section 14, Financial Support in February 2012.

Introduction
Who may Apply?
Parental Responsibility
The Circumstances in Which a Special Guardianship Order may be Made
Responsibilities for completing assessments of prospective Special Guardians
Planning Meeting
Approval of Special Guardianship & the Role of the Adoption & Permanency Panel and the Special Guardianship and Residence Order Panel
Discharge of Special Guardianship Order
Special Guardianship Support
Entitlement to Assessment for Special Guardianship Support
Assessment for Support
The Special Guardianship Support Plan
Review of Special Guardianship Support Plan
Financial Support
Urgent Cases

1. Introduction

Special Guardianship offers an option for children needing permanent care outside their immediate 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 legal certainty 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 be able to determine the extent to which the other person(s) with Parental Responsibility can exercise it (unless that person is another special guardian).

A Special Guardianship Order made in relation to a Looked After Child will discharge 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. A Local Authority with a Care Order can make an application to discharge a Special Guardianship 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; a child can have one or more Special Guardians at any one time. 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;
Any person who has a residence order in respect of a 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 with whom the child has lived for one year immediately preceding the application (even if the Local Authority does not consent);
Anyone who has the consent of all those who have a Residence Order in respect of the child;
Anyone with whom the child has lived for three out of the last five years provided that the accommodation did not end more than 3 months ago;
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 Special Guardians in respect of their own child.

3. Parental Responsibility

The Special Guardian will have Parental Responsibility for the child and will have 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 as the Special Guardian chooses but subject to any other orders (such as a contact order).

The parents will, however, retain the right to consent or not to the child's adoption or placement for adoption. A Special Guardian cannot consent to adoption.

In addition there are certain steps in a child's life which require the consent of every person 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. The court cannot make a Special Guardianship Order without being in receipt of a Special Guardianship Report.

Any person entitled to make an application for a Special Guardianship Order must give 3 months' written notice to a 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. Responsibilities for completing assessments of prospective Special Guardians

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, where the child is looked after, 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 Criminal Records Bureau 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 Guidance.

The Kinship Team is responsible for assessing the suitability of prospective Special Guardians and their support needs in circumstances where children are looked after and where they are children in need. The team is also responsible for providing Special Guardianship support. The child's social worker is responsible for completing the sections in the report relating to the child and his or her family. The only exception to this is where child are in need and the family are not know to the Department.

The Kinship Team Manager is responsible for agreeing the final plan, as any ongoing support would be co-ordinated through the Kinship Team.

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.

6. Planning Meeting

The allocated social worker may wish to 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.

Where children are looked after a planning meeting must be arranged once the assessment is completed between the Kinship and Child's Social Worker to discuss the recommendations and support needs and in particular contact arrangements. Where children are not looked after Social Workers must consult with the Kinship team manager in relation to any support needs.

7. Approval of Special Guardianship and the Role of the Adoption & Permanency Panel and the Special Guardianship Panel for looked after children and children in need (private law proceedings)

The report can be finalised either

By taking it to the Adoption & Permanency Panel (link to these procedures) - this should occur where children are looked after and previous recommendations (i.e. that long term fostering is in a child's best interests or that the child should be placed for adoption) have been agreed by the Agency Decision maker. In these circumstances the following paperwork should be submitted:

A Completed front sheet & executive summary;
The SGO report and the Special Guardian Assessment and Support Plan;
The original permanency assessment and reports;
Minutes from previous panels.
In all other circumstances the report should be taken to the Special Guardianship Panel. This panel consists of the Operation Manager of Placement Services and the Operation Manager of Looked after Children and Leaving Care. Further guidance is available in the Special Guardianship Panel Protocol.

8. Discharge of Special Guardianship Order

A Special Guardianship Order can be varied or discharged on the application of:

The Special Guardian;
A Local Authority who has a care order in respect of a child;
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 Plans will be subject to the approval of the Kinship Team 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 was not a Looked After child, the local authority where the Special Guardian lives has the responsibility for completing any assessment for Special Guardianship support and determining what, if any, provision will be made.

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. The family is obliged to have an annual review of their financial circumstances.

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 of a child who is the subject of a Special Guardianship Order.

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 request, in writing, an assessment for the purposes of Special Guardianship Support needs. The Local Authority will only carry out such an assessment where there has been an assessment pursuant to section 17 in the Children In Need teams and the social worker has agreed with the Kinship Team manager or Operational Manager of Adoption and Fostering that there is an exceptional level of needs which may warrant the provision of Special Guardianship support services.

The request for any assessment should be in writing and can be made by or on behalf of:

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);
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 Kinship Team Manager.

The assessment will be recorded on the Special Guardianship Support Plan if the support proposed is to be offered on more than one occasion.

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.

The Local Authority may disregard the means of the child and/or to enable a person to obtain, vary or discharge a Special Guardianship Order where the child is Looked After, provided that the Local Authority supports the application.

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:

The services to be provided;
The objectives and criteria for success;
Timescales;
Procedures for review;
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 Kinship Team Manager or the Operation Manager of Placement Services.

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 Operation Manager of Placement Services 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 were 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 Kinship Team Manager or the Operation Manager of Placement Services if 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.

Financial support must be reviewed annually and Special Guardians must provide annual financial data. See Section 14, Financial Support, below.

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 take into account any other grant, benefit, and 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 from the Local Authority will not duplicate any other payment available to the Special Guardian.

Financial support may be paid where it is necessary to ensure that the Special Guardian can look after the child and the applicants meet the criteria that suggests an allowance should be payable Ealing Council uses its weekly fostering allowance as its baseline for calculating support and determining the amount payable. If the financial assessment determines an allowance might be payable, it will only be paid if it is assessed as necessary to meet the needs of the child and prevent the child remaining and/or coming into care.

The Local Authority will consider replicating the remuneration paid to professional Local Authority foster carers if this will enable the former foster carer to become a Special Guardian for the child. The Local Authority is only able to continue such payments for up to two years unless the Local Authority considers the child has exceptional needs or there are exceptional circumstances that require on going payment.

The Special Guardian's means will nearly always be taken into consideration when assessing whether or not ongoing financial support should be paid.

Means WILL be disregarded when:

Financial support is considered to meet the application fees and legal costs of securing a Special Guardianship Order in respect of a looked after child (or a variation to an existing order, e.g. contact) provided that the Local Authority supports the making of the order.

Means MAY be disregarded when considering:

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;
Initial placement costs;
Recurring travel costs in contact arrangements for contact with a related person.

In order to determine whether or not an allowance might be payable the applicants should be asked to complete the Financial Assessment form (Link). This should be returned to the Business Support Officer in Placement Services. Once the means assessment has been carried out the Kinship Team Manager will decide whether or not to recommend to the Operation Manager of Placement Services that an allowance should be paid.

Once the Operation Manager of Placement Services has made a decision The Kinship Team Manager should then write to the Special Guardian setting out the amount of financial support 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.

A copy of this letter should be given to the Business Support Officer.

Where Special Guardians are in receipt of financial support, the Business Officer in Placement Services 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. The completed financial assessment will be forwarded to the Kinship Team Manager who will make a recommendation to the Operation Manager of Placement Services as to whether an allowance should continue to be payable.

Once the Operation Manager has made the decision the Business Support Officer will write to the Special Guardians informing them of the 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 Business Support Officer will send a reminder letter, giving 28 days notice of the suspension of payments if the information requested is not received.

Financial support will be discontinued when:

The child ceases to live with the Special Guardian;
The child ceases to attend full time education or training and begins working;
The child is able to obtain his/her own benefits in his/her own right;
The child turns 18 years unless, where the child is engaged in full time education/training, the Local Authority agrees to continue support.

In some circumstances, as a result of a review and whilst awaiting representations from the person whom the support plan affects, the Local Authority may suspend financial support.

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 Kinship Team 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.

End