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Contents

1. Introduction
2. Parental Responsibility
3. The Legal Framework
4. Application process
5. Preparation of Special Guardianship Reports
6. Special Guardianship Support Services
7. The Special Guardianship Support Plan
8. Review of Special Guardianship Support Plans
9. Financial Support
10. Urgent Cases

1. Introduction

The Adoption and Children Act 2002 (section 115) amended the Children Act 1989 to provide for a new order, Special Guardianship.

Special Guardianship Orders (SGO's) are intended to meet the needs of children who cannot live with their birth parents but for whom adoption is not appropriate. The Prime Minister's Review of Adoption in 2000 identified the need for an alternative legal status for children that offered greater security than long term fostering but without the absolute legal severance from the birth family that stems from an Adoption Order.

A SGO is intended to offer more than a Residence Order in terms of the security it brings and the support services that may be made available to the child and special guardians.

It should provide for a strong foundation for a lifelong relationship between the child and the special guardian.

The full implementation of the Adoption and Children Act 2002 including the provisions for special guardianship came into force on 30 December 2005.

2. Parental Responsibility

A SGO confers Parental Responsibility on the special guardian to be shared with birth Parents but exercised on day to day matters to the exclusion of the Parents.

The aim is to provide legal stability for the child whilst the Parents remain the child's legal birth Parents.

Whilst the Special Guardian can make decisions on most issues concerning the child without the need to consult the birth parents, he/she cannot make decisions on the following matters without the written consent of each person with Parental Responsibility or the leave of the Court:

• Where the law requires the consent of all persons with Parental Responsibility e.g. sterilisation
• Removal of the child from the U.K. for more than 3 months
• The change of the child's name

In addition the birth parents retain their right to consent or withhold consent to the child's adoption.

The SGO remains in force until the child is 18 years old.

3. The Legal Framework

Most SGOs will be made following an application but the Court may also make a SGO in any family proceedings, including adoption proceedings, where it considers it in the child's best interests to do so, even where no application has been made.

When considering whether to make a SGO the welfare of the child will be the Court's paramount consideration and the welfare checklist in Section 1 of the Children Act 1989 will apply.

Applications for a SGO can be made individually or jointly by 2 or more people. Applicants have to be over 18 years old.

The parent of a child cannot become a special guardian.

The Court may make a SGO in respect of the child on application from:

• Any guardian of the child
• A foster carer with whom the child has lived for one year or more immediately preceding the application
• Anyone who holds a Residence Order or who has the consent of all those with a Residence Order
• Anyone with whom the child has lived for 3 years out of the last 5 years
• Where the child is subject to a Care Order, anyone who has the consent of the local authority
• Anyone with consent of all those with Parental Responsibility
• Anyone else including the child, with leave of the Court

NB Special Guardianship is not intended as an alternative to step-parent adoption since the making of a SGO to a step-parent would enable him or her to exercise Parental Responsibility to the exclusion of the birth parent.

Before making a SGO, the Court must consider whether to vary or discharge any Section 8 Order. The Court should also consider whether or not a Contact Order should be made at the same time as the SGO.

The making of a SGO automatically discharges a Care Order but a SGO is not automatically discharged by the making of a Care Order. However, in those circumstances, the exercise of Parental Responsibility by the local authority would take precedence over the Special Guardian although he or she should always be consulted.

SGOs can be varied or discharged on the application of the special guardian, the local authority in whose name a Care Order was in force with respect to the child before the SGO was made, anyone with a Residence Order for the child before the SGO was made and, with leave of the Court, the child's parents or guardians, any step-parent who has Parental Responsibility or had it immediately before the SGO was made, and the child. The Court will only grant leave, however, if there has been a significant change in circumstances since the SGO was first made.

4. Application process

Any person who wishes to apply for a SGO must give 3 months' written notice to the local authority for the area where they live.

On receipt of such a notice, or if the Court makes a request, the local authority must investigate and prepare a report to the Court about the suitability of the applicants. The Court should not make an Order unless it has received such a report.

See: Court Reports in Adoption and Special Guardianship for a detailed list of the required contents of the Court report.

5. Preparation of Special Guardianship Reports

The author of the Special Guardianship report must be "suitably qualified and experienced".

Notifications of applications for SGOs are likely to go directly to the Duty and Assessment Team unless the child is already Looked After and the applicants have directly notified the worker for the child.

On receipt of the notification, Carefirst should be consulted and the details entered on Carefirst.

5.1 Applications in respect of Looked After Children

If the child concerned is looked after by Brighton & Hove, the notification should go to the Service Manager for the fieldwork team with responsibility for the child.

For most looked after children in Brighton & Hove, the decision for foster carers to apply to become special guardians would have been made at the Looked After Review.

The preparation of the Special Guardianship Report for the Court will need to be undertaken jointly by the Social Worker for the child and the worker for the foster carers. It will be the responsibility of the Social Worker for the child to explain the plan to the birth parents and to give them information about special guardianship. Social workers should provide birth parents with the Brighton & Hove booklet ‘A parent’s guide to the various options for children who cannot live with their birth parents’.

For Looked After children placed with in-house foster carers, the worker for the foster carers will be a Social Worker from the Fostering, Adoption & Permanence or Family and Friends Team. A meeting should be convened by the Fieldwork Service Manager or Practice Manager to plan for the preparation of the report and consider the Special Guardianship Support Plan, including the need for financial support (see Section 7, The Special Guardianship Support Plan ). It will also be important to consider at this meeting whether the applicants will need financial support with the application fee and any potential legal costs if the birth parents oppose the special guardianship application.

It will be important to ensure that carers have full information about special guardianship and are supported through their application process.

If the child is placed with a foster carer from an independent agency, a meeting will need to be convened by the appropriate Fieldwork Service Manager with the workers for the child and the foster carers to consider how the report should be completed and what the Special Guardianship Support Plan should include. The Service Manager will need to liaise closely with the Manager for Agency Placements as the support plan may entail purchasing support services from the independent agency.

6. Special Guardianship Support Services

6.1 Range of Services

The local authority must arrange to provide special guardianship support services to those who are assessed to require such provision. Support services are defined as:

• Financial support (See: Section 9, Financial Support)
• Services to enable special guardians, children subject to SGOs or Parents of children subject to SGOs to meet to discuss issues relating to special guardianship
• Assistance including mediation in relation to contact
• Therapeutic services for the child
• Support services for the special guardian including training
• Counselling, advice and information

Special guardianship support services should not be seen in isolation from mainstream services and these families and should be supported and encouraged to access these services or claim any state benefits that they may be entitled to.

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 SGO.

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 SGO is made, remains the responsibility of the local authority that agreed it so long as the family meet the criteria for payments.

6.2 Entitlement to assessment for support

Where the child is Looked After or was Looked After immediately prior to the making of the SGO, the following people MUST receive an assessment at their request:

• The child
• The Special Guardian or prospective Special Guardian
• A parent

Children who were looked after immediately prior to becoming subject to a SGO will be qualifying young people and entitled to advice and assistance under section 24(1) of the Children Act 1989, as amended, providing that the child: -

1. Has reached the age of 16 but not the age of 21
2. If less than eighteen years old, has a SGO in force.
3. If eighteen years old or above, had a SGO in force when they reached that age, and
4. Had been looked after by a local authority immediately before the making of the SGO.

Where the child is not Looked After or was not Looked After immediately prior to the making of the SGO, the following people MAY be offered an assessment of their need for Special Guardianship support services:

• The child
• The Special Guardian or prospective Special Guardian
• A parent

In all cases, the following people MAY be offered an assessment of their need for Special Guardianship support services:

• A child of the Special Guardian
• Any person with a significant on-going 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.

6.3 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 SGO on the relationship between the child, parent and Special Guardian.

Where the child concerned is Looked After and the child's foster carer is the applicant, 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 (see Section 5, Preparation of Special Guardianship Reports ). It will be important to ensure that there is no financial disincentive to foster carers where they are supported by the local authority going on to offer a secure placement to the child in their care via special guardianship.

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 7, Special Guardianship Support Plan).

It will be necessary to liaise with the appropriate health or education services during the assessment of the need for support services as the plan may need to contain details of services provided by bodies other than children's social care.

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 (See: Section 9, Financial Support)

7. The Special Guardianship Support Plan

Where an assessment identifies the need for ongoing support services, a Special Guardianship Support Plan must be completed. The process involved in drawing up a Plan is similar to that involved with an Adoption Support Plan.

Other agencies, such as education and health, may need to be consulted about the contents of the Plan.

The Plan should set out:

1. The services to be provided
2. The objectives and criteria for success
3. Timescales
4. Procedures for review
5. 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 Support).

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. Details of sources of independent advice and advocacy should also be provided with the plan.

Where representations are received, they should be referred to the Designated Manager (Special Guardianship Support) to decide whether to amend or confirm the Plan. Where the assessment has occurred in connection with a Court application, this should occur before the final Special Guardianship Report is submitted to the Court.

7.1 Special Guardianship Support Services for Looked After Children

It will be important to consider who will continue to have responsibility for the support and supervision of future contact arrangements and this should be outlined in the Support Plan. It may need to remain the responsibility of the appropriate fieldwork team.

The Support Plan will also need to detail the ongoing support that will be made available from the Children and Young People's Trust. This could include the continued provision of a Social Worker to support the placement, access to services from the Placement Support Team, as well as access to support groups and training services from the Fostering, Adoption and Permanence Team. Where foster carers from an independent agency are applying for a SGO, it will be necessary to consult with the Manager for Agency Placements about any plan to purchase support services from that independent agency.

7.2 Special Guardian Support Services for Children Not Previously Looked After

It will be important to ensure that such families are given information about local mainstream support and advice services including claiming any benefit for the child that they may be entitled to. It would clearly not be appropriate for such families to receive on-going support from the Duty & Assessment team. However, it may be appropriate to liaise with the Family and Friends team to consider whether they should be included in any of the general advice and support services currently provided to families post Residence Order.

It is expected that ongoing financial support will only be offered in exceptional circumstances. Consideration will need to be given to this if the family have been previously supported by Section 17 provision. This may be a one off payment or an application for a Special Guardianship allowance. The Special Guardianship Allowance budget holder needs to be consulted about any plan to pay a special guardianship allowance and the financial assessment process that applies to Residence Order Allowances needs to be followed.

Regulation 11 also requires the local authority to give notice in writing to someone they have decided not to undertake an assessment of for special guardianship support services. This relates to people that the local authority has discretion to assess for such services. The person who requested the assessment must be allowed at least 28 days to make representation in relation to that decision. It should therefore be the decision of the Service Manager for the appropriate team to make such a decision and for the appropriate Head of Service to consider any subsequent representation made by the applicant.

8. 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.

It is the responsibility for the Service Manager for the team with the named key worker for the Support Plan to ensure that the review of the plan takes place.

Reviews should normally be chaired by the appropriate Practice Manager for the named key worker within the plan. Reviews of Support Plans for children and special guardians who were agency foster carers will be undertaken by the Agency Placement Manager in liaison with the key worker from the fostering agency. A Practice Manager from the Adoption & Permanence Team will be involved in the review in a consultancy capacity.

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.

The Manager chairing the review will ensure that the review of the plan and any subsequent changes are sent out in a timely manner and any representations about the plan passed on to the appropriate Area Manager or Head of Service to consider.

9. 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 also take account of any other grant, benefit, allowance or resource available to the person in respect of his/her needs as a result of becoming a Special Guardian of a child. Financial support cannot duplicate any other payment available to the Special Guardian

The Special Guardian's means will usually be considered when ongoing financial support is requested. They should therefore be asked to complete a Financial Assessment Form, which when completed should be passed to the Finance Officer responsible for carrying out means assessments.

Once the means assessment has been carried out, the Finance Officer should send written notification of the outcome to the Designated Manager (Special Guardianship Support) for approval. The Designated Manager (Special Guardianship Support) should then write to the Special Guardian setting out the amount of financial support agreed and information in relation to the following:

• Whether financial support is be paid in regular installments 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 sent to the Finance Officer.

Means may be disregarded in relation to:

• The initial costs of accommodating a child who has been looked after - set up grant
• Recurring travel costs in contact arrangements
• 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.
• Where the Special Guardians were previously the child's foster carers - the local authority can maintain the fostering allowance for a transitional period of two years but with discretion to extend if necessary.

The only circumstance when the local authority MUST disregard means is when providing financial support in respect of legal costs, including fees payable to a Court in respect of a child who is Looked After where the local the authority support the making of the SGO.

Where Special Guardians are in receipt of financial support, the Finance Section will write annually to them with an Annual Financial Statement to be completed, together with a request for information about any change in circumstances for the Special Guardian or the child.

The Assessment Form should be forwarded to the Finance Officer for consideration. If any change in financial support is considered appropriate, the recommended change should be forwarded to the Designated Manager (Special Guardianship Support) for a 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 Annual Financial Statement within the required time scale, the Financial Section should send a reminder letter, giving 28 days' notice of the suspension of payments if the information requested is not received.

10. 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 Support) is still 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