This information was last updated: 16 March 2016
The Adoption and Children Act 2002 provides the legal framework for special guardianship under the Children Act 1989. Section 115(1) of the 2002 Act inserted new sections 14A-F into the Children Act 1989. The new sections provided for:
- who may apply for a special guardianship order
- the circumstances in which a special guardianship order may be made
- the nature and effect of special guardianship orders
- support services for those affected by special guardians
A special guardianship order is an order appointing a person or persons to be a child’s special guardian. Applications may be made by an individual or jointly by two or more people to become special guardians. Joint applicants do not need to be married. Special guardians must be 18 or over. The parents of a child may not become that child’s special guardian. A court may make a special guardianship order in respect of the child on the application of:
- 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 in the care of a local authority, any person who has the consent of the local authority
- anyone who has the consent of all those with parental responsibility for the child
- any person, including the child, who has the leave of the court to apply
The court may also make a special guardianship order in any family proceedings concerning the welfare of a child if they consider an order should be made. This applies even where no application has been made and includes adoption proceedings. When considering whether to make a special guardianship order, the welfare of the child is the court’s paramount consideration and the welfare checklist in section 1 of the Children Act 1989 applies.
The purpose of a Special Guardianship Order is to provide legal permanence for those children for whom adoption is not appropriate. Special guardianship would:
- give the carer clear responsibility for all aspects of caring for the child and for taking the decisions to do with their upbringing. The child will no longer be looked after by a local authority
- provide a firm foundation on which to build a lifelong permanent relationship between the child and their carer
- be legally secure
- preserve the basic link between the child and their birth family
- be accompanied by access to a full range of support services, including where appropriate, financial support
There is statutory guidance for local authorities under the Special Guardianship Regulations 2005 (as amended by the Special Guardianship (Amendment) Regulations 2016).
This is statutory guidance from the Department for Education dated February 2016. This means that recipients must have regard to it when carrying out duties relating to the provision of assessing and supporting special guardianship.
This guidance replaces former statutory guidance issued by the Department for Education and Skills in 2005.
The significant amendments provided by the statutory guidance are as follows:
- These regulations have been revised to amend the Schedule to the Special Guardianship Regulations (2005) (the 2005 Regulations) which prescribes the matters to be dealt with by local authorities in reports they prepare for the court in applications for special guardianship orders.
- Regulation 4 amends paragraph 1 of the Schedule to the 2005 Regulations. It requires the report to deal with any harm which the child has suffered and any risk of future harm to the child posed by their parents, relatives or any other person considered relevant. This might include, for example, a partner of the parent.
- Regulation 4 also amends the provision relating to the child’s needs to ensure that both their current needs and their likely future needs are dealt with in the report.
- Regulation 5 amends paragraph 4 of the Schedule to the 2005 Regulations. It replaces the provision relating to the prospective special guardian’s relationship with the child with a more detailed provision requiring an assessment of the nature of the child’s relationship with the prospective special guardian both at the time of the assessment and in the past.
- Regulation 5 also substitutes a new and more detailed provision relating to the parenting capacity of the prospective special guardian.
The aim of the changes is to make the assessment more robust and to ensure the placement of a child with a Special Guardian is sustainable so as to provide long term permanency to the child.
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