A Special Guardianship Order provides another option for legal permanence for children who cannot grow up with their birth families. It gives the special guardian legal parental responsibility for the child which is expected to last until the child is 18. However, unlike adoption, these orders do not remove parental responsibility from the child’s birth parents and therefore, the birth parents retain parental responsibility for the child. You would have more clear responsibility for all day to day decisions about caring for the chid and for taking important decisions about his up bringing, for example his education. More importantly, although the birth parents will retain their legal parental responsibility, you only have to consult with them about these decisions in exceptional circumstances.
There are a specific group of people who can make an application to be a special guardian and the grounds on which you can make an application is if you have the consent of the birth parents, who have parental responsibility and in the event that they do not provide the said consent, you can make an application for leave in order to apply.
The process involved in making the application is that you must give the Local Authority three months notice in writing that you are going to apply for an Order and the Local Authority is required to produce to the Court a report on all the children, not just the child who you are looking after, when the application is made. This report must include information about the child, his wishes, his birth family, contact arrangements, you and recommendations about whether or not an Order should be made. The Local Authority is expected to start work on this report or arrange for somebody else to do it as soon as possible after receiving the notice. The Court cannot make an Order without having received a report and the Local Authority are expected to ensure that the Social Worker who prepares the report is suitably qualified and experienced but there are no restrictions on who can write the report as there are for adoption.
Before making a Special Guardianship Order, the Court must consider whether to vary or discharge any other existing Orders made under Section 8 of the Children Act 1989. The Court can also decide to make a Contact Order at the same time as the Special Guardianship Order if, for example, either parent apply in order to ensure that they have regular contact with the child. In any event, in all circumstances the Court must consider the whole range of options available before making a Special Guardianship Order.
There is support which is available for special guardians and the Adoption and Children Act 2002 and the regulations made under it require the Local Authority to make arrangements for the provision of support services to a special guardian. These include financial and other support and also services for the children and birth families, for example, mediation services to assist contact between the child and their birth family.
By contrast of adoption, where birth parents lose all their parental responsibility, under the Residence and Special Guardianship Orders, the birth parents retain the right to consent or not to adoption and they can also apply for contact with their child through the courts. Adoption Orders are almost always for life whilst Residence Orders last until the child is 16 or 18. Special Guardianship Orders last until 18 but the Court is asked to take into account of the child’s need for a life long relationship with their special guardian at the time the Order is made.
Please speak to one of our specialist family solicitors for further advice on 01992 558 411.