3.2.7 Special Guardianship

RELATED CHAPTERS

Also see Court Reports in Adoption/Special Guardianship Guidance

Introduction
Who may Apply
Parental Responsibility
The Circumstances in Which a Special Guardianship Order may be Made
Planning Meeting
Approval of Special Guardianship for Looked After Children and the Role of the Adoption and Permanence Panel
Report to the Court
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 is a new Order available from 30 December 2005.

Special Guardianship offers a further option for children needing permanent care outside their birth family. Special Guardianship is a legal status that 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. Special Guardianship Orders are likely to replace the use of Residence Orders in many cases in that they offer greater stability and security to a placement.

Special Guardianship will also provide an alternative for achieving permanence in families where adoption, for cultural or religious reasons, is not an option.

Special Guardians will have Parental Responsibility for the child. A Special Guardianship Order made in relation to a Looked After Child will replace the Care Order and the Local Authority will no longer have Parental Responsibility. In these circumstances, the Care Order would be revived if the Special Guardianship Order was revoked.

2. Who may Apply

Applications for Special Guardianship may be individual or joint. 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
A local authority foster carer with whom the child has lived for one year immediately preceding the application
Anyone who holds a Residence Order with respect to the child or who has the consent of all those in whose favour a Residence Order is in force
Anyone with whom the child has lived for three out of the last five years
Where the child is subject of a Care Order, any person who has the consent of the Local Authority
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 become that child’s Special Guardians.

3. Parental Responsibility

The Special Guardian will have Parental Responsibility for the child and will have clear responsibility for the day-to-day decisions about caring for the child. The child’s parents will also continue to hold Parental Responsibility but their exercise of it will be limited. The parents will, however, retain the right to consent or not to the child’s adoption.

In addition there are certain steps in a child’s life which require the consent of every-one 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 welfare of the child is the court’s paramount consideration in all cases.

Any person applying for a Special Guardianship Order must give 3 months written notice to their 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 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.

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 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. Planning Meeting

Once notice has been received that an application for Special Guardianship is to be made, the notice should be passed to the allocated social worker or, if the child is not previously known, the case should be allocated to a social worker.

The allocated social worker should arrange a planning meeting and invite a representative of the Adoption and Permanence Team.

This planning meeting should clarify the information available regarding the needs of the child, the steps to be taken, who will assess and who will contribute to the report for the court. Court timescales will need to be clarified.

If the child is not previously known, there will need to be an assessment of the needs of the child, as well as an assessment of the suitability of the applicant and the meeting will determine who will be responsible for this. An assessment of the proposed contact arrangements, as well as the support needs of the child, parents and the prospective special guardian, should be included in the assessment.

6. Approval of Special Guardianship for Looked After Children and the Role of the Adoption and Permanence Panel

Where the application for Special Guardianship has been or is to be submitted as part of a Permanence Plan for a Looked After Child, it must be submitted to the Designated Manager (Special Guardianship) for approval.

The Designated Manager should receive reports in relation to the child’s needs for permanence, the suitability of the prospective Special Guardian and the suitability of the placement.

Where a Form E or Permanence Report has previously been submitted to the Adoption and Permanence Panel in relation to the child, it should be attached to the social worker’s brief covering report, with an addendum if necessary.

The assessment of the suitability of the prospective special guardian for a Looked After Child should follow the same procedure as for the assessment and approval of long-term foster carers (see Assessment and Approval of Foster Carers Procedure). The report on the assessment of the applicants should therefore include their medical history, the references received and the Criminal Records Bureau and other statutory checks undertaken for the assessment.

7. Report to the Court

On receiving notice of an application or if the court makes a request, the local authority must investigate and prepare a report to the court about the suitability of the applicant/s to be Special Guardians.

The information to be included in the report is as follows:

Information about the child who is the subject of the application, including history, health, education and emotional needs, family relationships
Information about the child’s family, including background history, employment, education, health and mental health, family relationships
The wishes and feelings of the child and others
Information about the prospective Special Guardian, including the outcome of CRB and local authority checks to include background history, health, education, employment, parenting capability and experience, support systems in place and needed, relationship with child and family, any contingency care arrangements that may be necessary, finances.
Information about the local authority which compiled the report and the actions of the local authority
A summary prepared by a medical professional
Implications of the making of a Special Guardianship Order for those involved
Relative merits of Special Guardianship and other orders
A recommendation regarding Special Guardianship
A recommendation regarding contact.

The social worker or social workers preparing the report should be suitably qualified and experienced.

A full list of the matters to be included is set out In Court Reports in Adoption/Special Guardianship Procedure.

8. Discharge of Special Guardianship Order

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

The Special Guardian
The local authority in whose name a Care Order was in force before the Special Guardianship Order was made
Anyone with a Residence Order in respect of the child before the Special Guardianship Order was made
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
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

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.

If a child is not Looked After, the local authority where the Special Guardian lives has the responsibility for Special Guardianship support.

Ongoing 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.

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

The following people MAY be offered an assessment of their need for Special Guardianship support services:

The child (if not looked after)
The Special Guardian or prospective Special Guardian (where the child is not or has not been looked after)
A parent (where the child is not or has not been looked after)
A child of the Special Guardian (whether the Special Guardianship child is looked after or not)
Any person with a significant on-going relationship with the child (whether the child is looked after or not)

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 that is relevant of the child or Special Guardian
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.

Where the child concerned is Looked After, the child’s social worker and the link worker for the Special Guardian should carry out the assessment jointly before submitting their report to the Court.

Where a child is not Looked After, the social worker allocated to complete the Court Report will also complete the Special Guardianship Support Assessment, if required, and Plan, if required (see Section 12, The Special Guardianship Support Plan).

At the end of the assessment, 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

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

The proposed Plan must then receive the approval of the Designated Manager (Special Guardianship).

Once managerial 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 Designated Manager (Special Guardianship) to decide whether to amend or confirm the Plan. The Designated Manager must then write to the person concerned with the final Plan.

13. Review of Special Guardianship Support Plan

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 is 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.

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.

14. Financial Support

Financial support cannot usually include the payment of remuneration to the special guardian or prospective special guardian for care of the child. Regulation 7 provides, however, that where the special guardian or prospective special guardian previously fostered the child and they receive an element of remuneration in the financial support paid to them as the child's foster carer; that the local authority may continue to pay that element of remuneration for two years from the date of the special guardianship order. These payments can continue longer than two years if the local authority considers this appropriate.

In order for financial support to be paid to a special guardian, he or she must agree to the following conditions:

It is the view of London Borough of Richmond that payments to special guardians should be calculated in line with adoption allowances to ensure parity between the two permanent care options.

Level of Allowances

There is no rising scale of allowance i.e. special guardianship allowances are set initially and will only increase in line with inflation.
The level of allowance payable for special guardians where financial support has been agreed will be calculated in line with the benefits system.
The level of special guardianship allowance will be set at twice the level of income support (currently £45.58 per week - 2006/07) for dependent children.
All special guardianship allowances will be reviewed annually in March. Special guardians must at that time complete and supply the authority with a statement of their circumstances for review at that time. This statement asks special guardians to specify the following:
1. Their financial circumstances
2. The financial needs and resources of the child or children
3. Their home address and whether or not the child or children live at home with them
4. If there has been any changes to their own or the child/children's circumstances

Should special guardians fail to comply with the requirements, the authority may suspend payment of the financial support provided.

Where information is given orally, special guardians must confirm this in writing within 7 days.

Eligibility

If a child has been looked after by the Local Authority immediately prior to the making of a residence or special guardianship order then the carers will be eligible for a special guardianship allowance subject to financial assessment as stated above.
It is felt that means testing on the basis of outgoings and income only can be unfair, and may not always take into account a child's additional needs.
London Borough of Richmond will operate a means test based on receipt of Child Tax Credit or Income Support (evidence will be required to be produced). Those families in receipt of Child Tax Credit or Income Support will then receive the full allowance payable.
Any family not in receipt of Child Tax Credit or Income Support will not receive an allowance.

Foster Carers

Where a current foster carer is proposing to become a special guardian for a child in their care (and for whom London Borough of Richmond are paying a fostering allowance), and where the local authority is supporting any such application, then the following financial support will be available for the first two years following the making of the special guardianship order:

Payment of a special guardianship allowance will continue at the fostering rate for two years post order.
Where the local authority are proposing that special guardianship is in a child's best interests, then legal costs will be borne by the local authority.

The conditions listed above will apply to foster carers also, and an undertaking given by them to inform the local authority of any change in circumstances as set out above.

Discussion on payment of financial support to special guardians must take place within Permanency Planning Meetings. Any request for a special guardianship allowance is subject to a financial assessment and a decision made by the Principal Social Work Manager.

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 Designated Manager (Special Guardianship) 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.

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