What is Special Guardianship?
Special Guardianship (SG) came into force on 30 December 2005, as part of the Adoption and Children Act 2002, Section 115. It offers a real alternative to long-term foster placements or adoption for those children who, for whatever, reason cannot live with their birth parents.
Special Guardianship allows children to remain within the family unit or another significant person. It allows children to have a sense of normality especially for those young people who may resent social workers or the stigma of being ‘in care ‘.
The real emphasis behind Special Guardianship is to foster a lifelong relationship between the child, the Special Guardian and their family.
A Special Guardianship Order and Child Arrangements Order (formerly known as a Residence Order) are private law orders. Legal aid can be available for such orders but will be obtained on a means and merit basis. It can take up to four weeks for the Legal Aid Agency to make a decision and it is not guaranteed it will be granted.
If the Local Authority (Devon County Council) has started care proceedings, or wishes for a family member to seek a private order to prevent issuing care proceedings, they may consider making a contribution towards the legal costs of applying for such an order. This is on the understanding that the work is undertaken by a solicitor who is a member of the Children’s Panel, and the work is charged at Legal Aid Agency rates.
When is Special Guardianship used?
If parents cannot meet their children’s needs and keep them safe, the children may be at risk of suffering significant harm.
If a child is at immediate risk of harm, they are removed from the care of their parents by either
- the Police: under Police Protection
- the court: under an Emergency Protection Order- Section 44 of The Children Act 1989
- the Local Authority: Voluntary Accommodation- Section 20 of the children Act 1989. This is an agreement between the Local Authority and the parents. The child is placed in foster care or with a family member until final decisions are made about their future. Under section 20, parents retain full parental responsibility for the child.
If the Local Authority (Devon County Council) does not think it is safe for a child to return home, they may make an application to the court for an Interim Care Order.
Parents will be assessed to determine their capacity to meet their child/children’s needs long-term and their ability to keep them safe; this may include a parenting assessment or psychological/psychiatric assessments.
Parents will also be expected to engage in services and support offered which may include attending domestic violence or substance misuse services and make the necessary changes within a time frame that considers the child’s needs.
If in the event parents are unable to achieve this, there needs to be a plan in place for the child’s future so that he/she can be placed with a permanent family without delay. This is called parallel planning and prevents any unnecessary anxiety or uncertainty for the child.
The Local Authority will help parents to identify possible family members or significant persons who can care for the child/ren long term if they cannot return home. This can be done through the process of Family Group Conference.
It is important to note that not all children under Special Guardianship have been in care or ‘looked after’ by the Local Authority or under Social Services. A parent may allow a child to live with a family member /friend under Special Guardianship for a number of reasons. For example:
- if the parent has not bonded with the child.
- if the parent is in poor health.
What are the alternatives?
There are several alternatives to Special Guardianship.
If there are no suitable family members or significant persons, the child may be placed in long-term foster care or adopted.
Sometimes no order is necessary when everyone is in agreement about where the child should live. However, if a child is living with a person who is not related for more than 28 days this is called Private Fostering and Children’s Services must be notified. More information can be found on Devon County Council’s website under private fostering.
A Child Arrangement Order can be granted by a court when there is not agreement about where the child should live. The person who is granted a Child Arrangement Order obtains parental responsibility for the child.
Sometimes children need more security and certainty than Special Guardianship can provide, and adoption is an option that can be considered. Birth parents lose parental responsibility following an Adoption Order being made.
The legal situation can be complicated. A solicitor can give you more information and advice and/or you may wish to discuss your situation with a social worker.