by Maxine Buck
If you are reading this blog then the chances are you have been invited to make or a considering issuing an application for a Special Guardianship Order (“SGO”) to become a special guardian to a child that you are either looking after or hope to look after for the duration of their minority. You may be a relative, such as a grandparent or an aunt/uncle; you may be a foster carer or a close friend to a family in need. Whoever you may be, you want to offer a protective and loving home to a child in need.
I will set out in brief an outline of rights and responsibilities of a Special Guardian and the process of the application but I suspect many of you are already familiar with these aspects of the law. The key issues for you often revolve around the support package offered by the Local Authority. The support package will have two elements:
- a) practical/therapeutic support; and
- b) financial support
The funding element is of particular consideration if, prior to any Order being made, you have looked after a child who was classed as a “looked after child”, in which case you were fostering and were in receipt of the foster carer’s allowance. These issues will be dealt with in more detail below.
What is Special Guardianship?
A Special Guardianship Order gives the holder parental responsibility, which he is entitled to exercise to the exclusion of any other person with parental responsibility BUT it does not extinguish the parent’s parental responsibility. The special guardian will effectively have “super parental responsibility” for all the day to day decisions about caring for the child or young person in his upbringing. Unlike adoption the order retains the basic link with the parents. They remain legally the child’s parents, though their ability to exercise their parental responsibility is limited. They retain the right to consent or not to the child’s adoption or placement for adoption. The special guardian must also take reasonable steps to inform the parent if the child dies.
While a special guardianship order is in force written consent of every person who has parental responsibility for the child or leave of the court must be given:-
- To change the surname of the child
- To remove the child from the United Kingdom for longer than 3 months
Unlike adoption orders, special guardianship orders can be varied for discharged on the application of:
- The special guardian
- A local authority in whose name a care order was in force with respect to the child before the special guardianship order was made
- Anyone with a residence order in respect of the child before the special guardianship 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).
This order tries to achieve stability for a child for whom adoption or long-term fostering is not suitable.
Who Can Apply?
A special guardian must be 18 or over and must not be a parent of the child.
Those able to apply for the orders are:
- Any guardian of the child
- Any holder of a residence order or anyone listed within s10(5)(b) or (c) of the Children Act 1989
- A relative or local authority foster carer with whom the child has lived for one year preceding the application; and
- Anyone who has obtained leave of the court to make the application
The court can also make a special guardianship order of its own motion, even if no application has been made. Clearly, in these rare instances, an SGO report would be directed to be filed by the relevant Local Authority and all connected persons would be put on notice.
The Application for a SGO will be made to the court using forms C100, FM1 (and C2 if asking for permission to make the application. Since the introduction of the Children & Families Act 2014, proof of attendance at a mediation information meeting is also required in the form of form FM1. You can get the forms from the court or online at www.hmcourts-service.gov.uk. The current fee for the application is £215.00 (as at March 2016).
There are often four main routes to an application coming before the Court.
- In the vast majority of cases the Local Authority, in whose area the child resides will be providing assistance before any application is made. Where the child is voluntarily accommodated with, for instance, a grandparent, they will initially undertake a viability assessment and thereafter will seek to support that grandparent to make an application where rehabilitation to the parent is not possible and the parent agrees to the application. The Local Authority will require three months’ notice in advance of any application so that it can undertake its assessment and produce the SGO report. The report can be attached to the application for an SGO.
- Foster carers have been encouraged by children’s services to seek SGOs in respect of children in their care. However, the lack of parity vis-à-vis fostering allowance and SGO allowance has deterred many from making taking this step.
- The other option emerges in the lead up to or during the course of care proceedings. A relatives or friend will have offered to be assessed as a permanent carer for the child subject to care proceedings. If a viability assessment is positive and the court directs, an SGO report will be prepared and the Local Authority will draw up a care plan seeking placement under an SGO.
- A private arrangement may be agreed between the parent(s) and the prospective guardian. Where such an agreement is made, before applying, the applicant must give the local authority three months’ written notice of his intention to apply (s.14A(7) Children Act 1989). On receipt of the notice, the local authority must investigate and prepare a report for the court dealing with matters such as the suitability of the applicant to be a special guardian. The Court must receive and consider the report before it can make the order.
The Court must consider the welfare principle (s.1(1) CA 1989), the welfare checklist (s1(3) CA 1989) and the no order principle (s.1(5) CA 1989) when deciding whether or not to make a special guardianship order. Before making the order the court must also consider whether to make a contact order and whether any existing s.8 orders need to be varied or discharged.
The Support Package
The report will include the support package both practical and financial. We often advise clients on the contents of those packages before final orders are made. The key issue often discussed is whether the support package is sufficient to help promote the welfare of the child.
Please note that where the Local Authority fund the costs of legal advice on the contents of the support package in relation to a looked after child they support the application, such funding cannot be means tested. It is essential that prospective carers are aware of their legal rights and obligations where such orders are contemplated.
S.14F of the Children Act mandates the Local Authority to make a range of support services available in their area to meet the needs of people affected by special guardianship. Special guardianship support services include:
- Financial support (regulation 3(1)(a))
- Services to enable children, special guardians and prospective special guardians and parents of children to discuss matters relating to SGO
- Assistance including mediation services for contact
- Therapeutic services for the child
- Training and respite care
- Counselling, advice and information
Services are provided in accordance with the regulations as set out in the SG regulations 2005. The guidance to the regulations is far more useful as it fleshes out the requirements. https://www.gov.uk/government/…/special_guardianship_guidance).
When considering the financial support package:
- firstly, make sure that you are claiming all the welfare benefits you are entitled to. Any financial assessment undertaken by the Local Authority will be based on you receiving the maximum benefits you are entitled to;
- secondly, if the Local Authority won’t budge then it’s time to remind them that SGO regulations do provide for discretion. This means that the Local Authority have a discretion as to how much they pay (see below). Many Local Authorities will try to suggest that they have no discretion – well they do, subject to their budgets. The question is whether they will exercise it in your favour. Talking about money is just as important as discussing what counselling services will be made available. Don’t be embarrassed: a child’s welfare includes financial security.
The question is what qualifies as an exception? Is it a question of who blinks first? What about the interests of the child?
Anecdotally I have seen a local authority capitulate in the face of very determined grandparents who indicated they would refuse an SGO if the local authority did not continue to pay them the special guardianship allowance at the foster care allowance rates. An SGO was the right order to make.
REGULATION 6 concerns the provision of financial support. Guidance states:
“Financial issues should not be the sole reason for a special guardianship failing to survive….Regulation 6 provides that financial support is payable to facilitate arrangements for a person to become the child’s special guardian, where this is considered to be beneficial to the child’s welfare, and to support the continuation of these arrangements after the order has been made.
Regulation 6 also sets out the circumstances in which financial support may be paid to a special guardian.
Where assistance with travel costs is required this may either be given in cash under regulation 3(1)(b), or if the costs are regular, by way of the support package under regulation 6(2)(b).
REGULATION 7 – remuneration for former foster parents.
Where the special guardian or prospective special guardian previously fostered the child and they received an element of remuneration in the financial support paid to them as the child’s foster parent, .. the local authority may continue to pay that element of remuneration for two years from the date of the SGO. The payments can continue for longer than two years if the local authority considers this appropriate.
So – funding can be increased to include an element of remuneration where the prospective Guardian was a foster carer. N.B. This includes anyone where a child was placed with them under s.20 Children Act 1989 or an Interim Care Order and received the foster care allowance.
With regard to duration – such payment usually lasts for the first two years only but can extend throughout the child’s minority where the local authority considers it appropriate.
REGULATION 8 payment of financial support
Can either be paid regularly or in a lump sum depending on the nature of the support required.
REGULATION 9 – Cessation of financial support
Financial support ceases to be payable if:
- the child ceases to have a home with him
- the child ceases full-time education or training or commences employment
- the child qualifies for income support or JSA
- the child attains the age of 18 unless he continues in full time education or training
REGULATION 10 – Conditions for regular payment of financial support
The following conditions must be agreed before any payments are made:
- the guardian must inform the local authority immediately if he changes his address; the child dies; any of the changes mentioned in regulation 9; or there is a change in his/her financial circumstances
- In addition, he will complete and supply the local authority with an annual statement setting out his financial circumstances, needs and resources of the child and address
The local authority may set any other conditions they consider necessary.
REGULATION 13 – Assessment for financial support
“…in determining the amount of any ongoing financial support, the local authority should have regard to the amount of fostering allowance which would have been payable fi the child were fostered. The local authority’s core allowance plus any enhancement that would be payable in respect of the particular child, will make up the maximum payment the local authority could consider paying the family. Any means test carried out as appropriate to the circumstances would use this maximum payment as a basis.”
In other words, the maximum they can pay up to is the foster care allowance plus any uplift on that allowance to take account of special needs. Also note that the maximum is the starting point for SG financial assessments.
In essence Regulation 13 provides for when the local authority has discretion to disregard means and when they must disregard.
The Local Authority may disregard means where they are considering financial support for:
- Initial costs of accommodating a child who has been looked after – otherwise known as the “settling-in grant”
- Recurring costs in respect of travel.
- Any special care needs
- Where they are considering including an element of remuneration in financial support payments to ex-foster carers – so that local authorities can maintain the amount paid to a foster carer who goes on to become a special guardian for the transitional period.
REGULATION 18 – review of financial support paid periodically
The Local Authority must review at least annually the financial circumstances of the Special Guardian and “at any stage in the implementation of the plan that the local authority considers appropriate”.
The procedure for assessment as set out in regulations 12 and 13 apply equally to a review for financial support.
Other Services Support
Regulation 3, as already mentioned, states that the local authority must provide support services. These will include, for instance, support from the family support team and therapeutic services, for instance, which are aimed at promoting the child’s welfare.
Regulation 4 enables a local authority to arrange for these services to be provided by another body.
Regulation 11 provides that the following people must receive an assessment at their request in cases
Regulation 12 sets out the procedure for assessment including guidance on the need to consult the relevant PCT or LEA during the course of the assessment.
Regulation 14 provides that a plan must be prepared if the local authority proposes to provide special guardianship support services to a person on more than one occasion and the services are not limited to the provision of advice or information.
Special Guardianship can offer a child a sense of security and permanence without severing all familial ties. It plugs the gap between adoption and fostering and will doubtless increase in use.
On the finances – Yes, there is discretion. There has to be and each application should be dealt with on a case by case basis. The key is to know the law and present your case in a child focused way. Every penny paid must be justified from the ever dwindling local Authority pot. The key is to be systematic and evidence-based in your approach.
With regard to other support – always scrutinise the report carefully. Make sure that it covers every issue you consider needs addressing. If anything is missing – raise it. Don’t hold back. It is important that you get the best start possible. Don’t be afraid to alert the local authority to new issues which may arise. The local authority is there to assist – use it.
Maxine Buck has advised a number of prospective Special Guardians concerning the support packages offered by local authorities. She understands the concerns of any would be Guardian and is very proactive in seeking a fair outcome for her clients. She can take enquiries nationally (England & Wales). She looks forward to hearing from you.
Essential information can be found in the following
Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.