Non-parent carers: Special Guardianship Orders


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If you are interested in becoming a Kinship Carer for a child or young person or are already caring for a child who is the subject of care proceedings then you may wish to apply for an order from the Court that gives you responsibility for their care.

In Child Care Law the Court can make an Order to place the child within their family rather than making a care or adoption order. This may, for many reasons, be the Court’s preferred option.These orders can be made in private law proceedings (child arrangements), in public law proceedings (child care/supervision proceedings) or as a free-standing application.The main features of special guardianship are to;

  • Give the carer clear responsibility for all aspects of caring for the child, and to make decisions concerning their upbringing.
  • Provide a legal structure to build a lifelong relationship between the carer & child.
  • Provide a link between the child and their parents and maintain the child’s connections within their natural birth family.
  • Allow proper access to support services.

Under a Special Guardianship Order the carer of a child is granted overriding Parental Responsibility.  This is different to normal parental responsibility under a Child Arrangements Order and the parental responsibility may be exercised to the exclusion of all others who may also hold parental responsibility.

Support for Special Guardians

Under Special Guardianship the Local Authority are required to undertake an assessment of support required for the placement to work in the child’s best interests. This can include financial, practical and other support.

Following the introduction of Special Guardianship Orders there has been much litigation about the extent to which a Local Authority is required to financially support a placement.  In landmark cases including Re X –v- London Borough of Tower Hamlets 2013 EWCA CIV 904 the higher Courts have consistently criticised local Authorities for not supporting kinship placements properly.  In Re X itself the Court of Appeal unanimously held that there should be no difference between the support given to family carers and unrelated foster carers.

The Court held that this is a reflection of the Statutory requirement set out in section 22 c (7) (a) of the Children Act which gives preference to family and friends as foster carers….”this is undoubtedly based on the understandable view that usually this will have the best chance of achieving a successful outcome in what are often very challenging circumstances”.

Applying for a Special Guardianship Order

To obtain a Special Guardianship Order, normally written notice of intention to apply must be given to the Local Authority. The Local Authority then has three months in which to prepare the necessary Special Guardianship Report and/or support plan.

If the application is made within ongoing Court proceedings the Court does have power to reduce the three month time scale but a Court can not make a Special Guardianship Order in the absence of the Special Guardianship Report.

The use of Special Guardianship Orders has continued to increase since the provisions were inserted into the Children Act.

It is not uncommon for a Local Authority to look to place a child with relatives who have been identified as potentially suitable carers but who do not meet the exacting family network carer standards which effectively assess family members to the same standard as any other Foster Carer.

Specialist Guardianship Orders: A Case Study

An example of how Special Guardianship Orders can be used to assist family members would be a case conducted by our Care Team.

Family members (maternal aunt & her partner) sought assessment as carers in proceedings commenced by the Wakefield Local Authority. An initial viability assessment ruled them out as carers on the basis that their accommodation was overcrowded and on the basis that they already had five children of their own.

An application was made for independent social work assessment which reported in glowing terms the quality of the child care provided by the couple and recommended that Wakefield undertake a Special Guardianship Assessment.Following assessment and the provision of a financial support package which included funding a weekly residence payment and/or funding the division of one existing bedroom into two, the child was subsequently placed within the family under a Special Guardianship Order.The mother went on to have a second baby whilst continuing to lead a chaotic lifestyle. Proceedings were commenced by Blackburn Local Authority for a Care Order and again the couple put themselves forward as carers.

The Local Authority again undertook a Comprehensive Assessment and both they and the Children’s Guardian commented that the care provided to all of the children was exemplary. A further Special Guardianship Support Plan was prepared providing for placement of the child with the couple and the Local Authority went on to fund a two story extension of the property to provide more room for the family at a cost of nearly £50,000.Without the provisions of the Special Guardianship Order these placements would have been highly unlikely. Under a Residence Order there would be no statutory duty on the Local Authority to financially support the placement and clearly neither of the children could have been placed with the couple as foster carers given the number of their own children. Adoption orders would have “skewed” the family tree and have the potential to cause confusion for the children in later life.Family Network Carers who may be interested in seeking Special Guardianship should seek legal advice from our team of child care specialists. Information is available from the Family Rights Group website details www.frg.org.uk

The Family Rights Group also offer a telephone advice service 0808 801 0366.A detailed study of children and informal kinship carers was undertaken by the school for policy studies university of Bristol and copies of the Report can be found at https://www.bristol.ac.uk/sps/research/projects/current/rj5314/report.pdf

It is worth noting that certainly in cases involving ongoing Public Law Court Proceedings where potential family network carers are not eligible for legal aid the Local Authority may consider funding two or three hours of advice as part of the financial support package.


Recognition for our Child Care Law team

  • Legal Aid Lawyer of the Year Awards (LALY) 2016 - Finalist - Family Law Award

Thankyou for all the time and support you’ve given us, we really feel that you cared about us.

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