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5.3.16 Applications for Special Guardianship Orders

RELATED CHAPTER

This procedure should be read in conjunction with the Permanence Planning Guidance.

RELATED GUIDANCE

DfE, Special Guardianship Guidance (January 2017)

Adoption Support Fund

Firm Foundations: Complaints about Council Support and Advice for Special Guardians (Local Government and Social Care Ombudsman)

Promoting the Education of Looked After Children and Previously Looked After Children (2018)

LOCAL GUIDANCE AND INFORMATION

Support and information for special guardians can be found in the Family & Friends Care Policy.

For information about financial support, see Financial Support for Permanence.

AMENDMENT

This chapter was updated in April 2019 in line with the Children and Social Work Act 2017 and revised statutory guidance. These changes relate to ongoing education support for children and young people with the status of 'previously Looked After Children'.

A previously Looked After Child is someone who is no longer looked after in England and Wales because they are the subject of an Adoption, Special Guardianship or Child Arrangements Order which includes arrangements relating to with whom the child is to live, or when the child is to live with any person, or has been adopted from 'state care' outside England and Wales.

It was also updated to reflect the Local Government and Social Care Ombudsman good practice points to follow when working with Special Guardians. A link to the full report 'Firm Foundations: Complaints about Council Support and Advice for Special Guardians (Local Government and Social Care Ombudsman) (May 2018)' was added.


Contents

  1. Introduction
  2. Eligibility
  3. Parental Responsibility
  4. Special Guardianship Orders
  5. Special Guardianship and Looked After Children
  6. Report to the Court
  7. Variation and Discharge
  8. Special Guardianship Support Services
  9. Assessment for Special Guardianship Support
  10. The Special Guardianship Support Plan
  11. Review of Plans
  12. Financial Support
  13. Death of the Child

    Appendix 1: Good Practice: Getting it Right First Time


1. Introduction

Special Guardianship offers an option for children needing permanent care outside their birth family. It can offer greater security without the complete separation from the birth family afforded by adoption.

It can meet the needs of a significant group of children, who need a sense of stability and security but for whom the absolute legal break with their birth family associated with adoption may not be appropriate.

A Special Guardianship Order offers greater stability and legal security to a placement than a Child Arrangements Order.

Looked after children who are made the subject of a Special Guardianship Order are eligible as previously Looked After Children for additional support with their education. For further information, see the Education of Looked After and Previously Looked After Children Procedure.

Special Guardians have Parental Responsibility for the child and, whilst this is shared with the child's parents, the Special Guardian generally has the ability to exercise this responsibility without seeking the agreement of the parents.

A Special Guardianship Order made with respect to a child who is the subject of a Care Order or for an order for contact to a child in care discharges those orders.

A Care Order, however, does not automatically revoke a Special Guardianship Order although the Special Guardian's exercise of Parental Responsibility is restricted as the local authority has primary responsibility for decision-making under the Care Order.

For further details about Special Guardianship as a permanence option for Looked After Children, see Permanence Planning Guidance.


2. Eligibility

Applications for Special Guardianship may be individual or joint. Joint applicants do not need to be married. Special Guardians must be 18 or over and must not be a parent of the child in question.

Subject to giving notice to the relevant local authority, the following people are entitled to apply for a Special Guardianship Order without needing to first seek the leave of the court:
  • Any guardian of the child;
  • Any person who is named in a Child Arrangements Order as a person with whom the child is to live;
  • Any person who has the consent of each person named in a Child Arrangements Order as a person with whom the child is to live;
  • Anyone with whom the child has lived for a period of at least 3 years (which need not be continuous, but must not have begun more than 5 years before, or ended more than 3 months before, the making of the application);
  • A relative with whom the child has lived for a period of at least 1 year immediately preceding the application;
  • Where the child is in the care of a local authority, any person who has the consent of the local authority;
  • Any person who has the consent of all those with parental responsibility for the child;
  • Any other person, aged 18 or over (other than a parent) may apply for a Special Guardianship Order if they have the leave of the court to make the application.


3. Parental Responsibility

The Special Guardian will have Parental Responsibility for the child and, subject to any other order in force, will have clear responsibility for the day-to-day decisions about caring for the child to the exclusion of anyone else who might have Parental Responsibility (apart from another Special Guardian).

The child's parents will continue to hold Parental Responsibility but their exercise of it will be limited. The parents will, however, 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 parents if the child dies (see Section 13, Death of the Child).

In addition there are certain steps in a child's life which require the consent of everyone with Parental Responsibility or the leave of the court, for example:

  • Causing the child to be known by a different surname; or

  • Removing the child from the United Kingdom for longer than 3 months.

The court may, at the time of making the Special Guardianship Order, give leave for the child to be known by a new surname and/or to be removed from the United Kingdom for longer than 3 months, either generally or for specified purposes.


4. Special Guardianship Orders

The Court may make a Special Guardianship Order in any family proceedings concerning the welfare of the child. This applies even where no application has been made and includes adoption proceedings.

Any person making an application for a Special Guardianship Order must give 3 months' written notice to their local authority of their intention to apply. In relation to a Looked After Child, the notice will go to the local authority looking after the child. In all other cases, the notice will be sent to the local authority for the area where the applicant resides. The local authority receiving the notice then has a duty to provide a report to the Court.

The only exception to the requirement for 3 months' notice is where the Court has granted leave to make an application and waived the notice period.

Where the local authority has received notice from an applicant or a request for a report from the Court, this will normally be forwarded to the Kinship Assessment & Review Team who will send written information about next steps to the prospective Special Guardian and the parents of the child in question. This includes information about Special Guardianship support services and how to request an assessment of needs for support.

Once notice has been received that an application for Special Guardianship is to be made, the notice should be passed to the allocated social worker or, if the child is not previously known, arrangements must be made for the case to be allocated to a social worker.

The social worker preparing the Court report should be suitably qualified and experienced. Unlike in adoption, there are no specific requirements about this.

All cases will require:

  • An assessment of the current and likely future needs of the child (including any harm the child has suffered and any risk of future harm posed by the child's parents, relatives or any other person the local authority considers relevant);
  • An assessment of the prospective Special Guardian's parenting capacity including:
    • Their understanding of, and ability to meet, the child's current and likely future needs, particularly any needs the child may have arising from harm that the child has suffered;
    • Their understanding of, and ability to protect the child from any current or future risk of harm posed by the child's parents, relatives or any other person the local authority consider relevant, particularly in relation to contact between any such person and the child;
    • Their ability and suitability to bring up the child until the child reaches the age of eighteen.
  • An Assessment of the proposed contact arrangements and the support needs (see Section 9, Assessment for Special Guardianship Support) of the child, parents and the prospective special guardian.

The assessment of the applicants should include their medical history, the references received and the Disclosure and Barring Service and other statutory checks undertaken for the assessment. Applicants are required to pay for both the DBS check and the cost of medical reports.

The social worker must collate information both for the assessment and any report to court and should use the structure of the court report as a guide for information gathering and analysis, see Court Reports: Adoption, Placement and Special Guardianship Orders Procedure.


5. Special Guardianship and Looked After Children

If the child is Looked After and the application has been agreed as part of their Care Plan at a LAC review, the assessment will usually have been undertaken and the outcomes agreed as part of the permanence planning for the child.

The plans for Special Guardianship as an outcome for a looked after child, must be discussed with, and approved by, the District Safeguarding Manager.


6. Report for the Court

For the required contents of the report to court, see Court Reports: Adoption, Placement and Special Guardianship Orders Procedure for what is required within the report. Once completed, it should be submitted to the social worker's line manager for approval.

The court is unable to make a Special Guardianship Order unless and until it has received a Special Guardianship Report. However, where the bulk of the information required is already before the court in another format, the local authority is not required to start from scratch. Instead, the local authority would normally be directed to file a report which will fulfil the requirements by providing any missing information whilst cross-referencing to the information already before the court in other reports.


7. Variation and Discharge

A Special Guardianship Order can be varied or discharged on the application of:

  • The Special Guardian (or any of them, if there are more than one);
  • The local authority in whose name a Care Order was in force before the Special Guardianship Order was made;
  • Any person who is named in a Child Arrangements Order as a person with whom the child is to live;
  • With the leave of the court:
    • Any parent or guardian of the child;
    • Any step-parent who has Parental Responsibility;
    • Anyone who had (but no longer has) Parental Responsibility immediately before the Special Guardianship Order was made;
    • The child (if the court is satisfied that the child has sufficient understanding to make the proposed application).

Where the applicant is not the child and the leave of the court is required, the court may only grant leave if there has been a significant change in circumstances since the Special Guardianship Order was made.

The court may, during any family proceedings in which a question arises about the welfare of a child who is subject to a Special Guardianship Order, vary or discharge the Order in the absence of an application.


8. Special Guardianship Support Services

Cambridgeshire County Council has made arrangements for the provision of a range of support services.

Special Guardianship support services could include:

  • Financial support (see Section 12, Financial Support);
  • Services to enable groups of children for whom a Special Guardianship Order is in force (or in respect of whom such an Order is being formally considered), special guardians, prospective special guardians and parents of the child to discuss matters relating to special guardianship;
  • Assistance, including mediation services, in relation to contact between the child and their parents or relatives or any other person with whom the child has a relationship that the local authority considers to be beneficial to the welfare of the child;
  • Therapeutic services for the child;
  • Assistance to ensure the continuation of the placement, including training for the special guardian to meet the child's specific needs, respite care and mediation; and
  • Counselling, advice and information.

The provision of Special Guardianship Support services would normally be based upon a full assessment of the child's needs and the special guardian's ability to meet them and will be subject to the approval of the Team Manager, (Kinship Assessment & Review).

Support services should not be seen in isolation from mainstream services and it is important to ensure that families are assisted in accessing mainstream services and are aware of their entitlements to tax credits and welfare benefits.

Where the child was previously Looked After, responsibility for the assessment and provision of services for the child, the Special Guardian and any children of the Special Guardian all remain the responsibility of the local authority where the child was last looked after for 3 years after the making of a Special Guardianship Order. Thereafter the local authority where the Special Guardian lives will be responsible for assessing and providing support services.

If a child is not Looked After, Cambridgeshire has responsibility for assessing and providing support services to Special Guardians living in the county. If the Special Guardian and their family move, the responsibility passes to the new local authority. The local authority where the Special Guardian previously lived should cooperate as needed to ensure a smooth transition for the child.

Ongoing financial support (i.e. that paid on a regular basis), which was agreed before the Special Guardianship Order was made, remains the responsibility of the local authority that agreed it, for the duration of that agreement and so long as the family qualify for payments.

In addition to the support provided by local authorities, the Adoption Support Fund in England also covers therapeutic support for children, living in England, who were previously in care immediately before the making of a Special Guardianship Order.

Based on the assessment of needs, local authorities can apply for funding from the Adoption Support Fund.

Where there is an urgent need for 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 Team Manager (Kinship Assessment & Review) will still be required. The local authority will need to review the provision as soon as possible after the support has been provided.


9. Assessment for Special Guardianship Support

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

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

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

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

In all cases, whether the child was looked after or not, the following people also MAY be offered an assessment of their need for Special Guardianship support services:

  • Any child of the Special Guardian
  • Any person with a significant ongoing relationship with the child

If the 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. The person who requested the assessment must be allowed at least 28 days to make representations to the Team Manager (Kinship Assessment & Review Team) who will discuss this with their line manager.

It will not always be necessary to undertake an assessment before providing information, advice or counselling services. However, if the local authority is considering providing any of the support services (see listing above) then a full assessment should be carried out. However where a request relates to a particular service or where it is clear that a particular service is what is required, then the assessment process can be limited to looking at the need for that service.

The assessment should be based on the Assessment Framework and include the following:

  • The developmental needs of the child;
  • The child's educational needs;
  • The parenting capacity of the Special Guardian or prospective Special Guardian;
  • Family and environmental factors that have shaped the life of the child;
  • What the life of the child might be like with the proposed Special Guardian;
  • Any previous assessments undertaken in respect of the child, the Special Guardian or the prospective Special Guardian;
  • The needs of the Special Guardian or prospective Special Guardian and their family;
  • The likely impact of the Special Guardianship Order on any pre-existing relationship between the child, parent and Special Guardian.

Consultation, where appropriate, with the relevant health and education providers should inform the assessment.

Special Guardianship Support will be subject to the approval of the Team Manager (Kinship Assessment & Review Team).

At the end of the assessment and once approved, the social worker must inform the person requesting provision in writing of the outcome, including:

  • The outcome of the assessment and the reasons for it;
  • Availability of alternative or additional support services;
  • The services (if any) that it is proposed to provide to help meet the child's needs;
  • In relation to financial support, the basis on which this is determined and, if agreed, the amount and any conditions attached (see Section 10, The Special Guardianship Support Plan).


10. The Special Guardianship Support Plan

Where an assessment identifies the need for ongoing support services, a Special Guardianship Support Plan must be completed.

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

A looked after child who becomes the subject of a Special Guardianship Order will be entitled, as a 'previously looked after child' to additional education support in early years settings and schools/colleges up to the statutory school leaving age. This is subject to the request/agreement of those with parental responsibility. Carers and schools/settings can also approach the Virtual School for advice. For further information, please see Education of Looked After and Previously Looked After Children Procedure.

The Plan should be written in a way that everyone involved can understand, and set out:

  • Identified needs and reason for the Plan;
  • The services to be provided;
  • The objectives and criteria for success;
  • Timescales for provision;
  • Procedures for review;
  • A name and role of the key person to monitor progress with the Plan.

Special Guardianship Support will be subject to the approval of the Team Manager (Kinship Assessment & Review Team).

Once approved, 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. The social worker should also give information to the person concerned about who to contact to obtain independent advice and advocacy.

Where representations are received, they should be referred to the Team Manager (Kinship Assessment & Review Team). to decide whether to amend or confirm the Plan. The allocated social worker must then write to the person concerned setting out the final Plan. A final notice of the authority's decision must then be given to include the following:

  • Details of the plan and the name of the person nominated to monitor the provision of services;
  • Where financial support is to be provided:
    • The method of determination of the amount of financial support;
    • The amount, frequency, start date and any specified end date;
    • When any single payment is to be made;
    • Details of any conditions and the date by which those conditions are to be met;
    • The arrangements and procedure for review, variation and termination of financial support;
    • Confirmation that, in the event of any overpayment, recovery would be sought.


11. Review of Plans

Special Guardianship Support Services (other than financial support payable periodically) will be reviewed annually, or if there is any change of circumstances affecting the support.

The annual review of financial support is undertaken by exchange of correspondence, with the special guardian providing an updated financial assessment. Where the change of circumstances is relevant only to one service the review may be carried out with reference only to that service. However, where the change of circumstances is substantial, for example, a serious change in the behaviour of the child, it may be appropriate to conduct a new assessment of needs. If it is proposed to vary or terminate the provision of special guardianship support services to any person, before making any decision they must be given 28 days' notice of the proposed decision and an opportunity to make representations to the Team Manager (Kinship Assessment & Review Team). This notice must contain the same information as the notification of the outcome of a first assessment (see Section 10, The Special Guardianship Support Plan) including a draft of the revised plan.

Any change to the Special Guardianship Support Plan will be subject to the approval of the Team Manager (Kinship Assessment & Review Team).

If the local authority decides to vary or terminate the provision of support after the review, this must be confirmed in writing.


12. Financial Support

See also: Financial Support for Permanence.

Financial support must not duplicate any other payment available to the Special Guardian and is based on the national standard means test. The local authority will take account of any other grant, benefit, allowance or resource available to the person, including those associated with them becoming a Special Guardian.

Special Guardians must be advised/assisted to access any benefits to which they are entitled. This will usually include child benefit and tax credits. Taking up full entitlement would be a pre-condition of any financial support.

Once the means assessment has been carried out, the Finance Officer should send written notification of the outcome to the social worker, who must discuss this with the Team Manager (Kinship Assessment & Review Team) for authorisation.

The social worker must then write to the Special Guardian setting out the amount of financial support agreed and the information outlined in Section 10, The Special Guardianship Support Plan. A copy of this letter should be sent to the Finance Officer.

In assessing the means test, the following may be disregarded:

  • The initial costs of accommodating a child who has been Looked After;
  • Recurring travel costs in contact arrangements;
  • Any special care 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 considering an element of remuneration in financial support payments to former foster carers.

Where the Special Guardians were previously the child's foster carers, the local authority may maintain the fostering allowance for a transitional period of two years.

In relation to a looked after child, the local authority may providing financial support in respect of legal costs, including court fees, where they support the making of the Special Guardianship Order or an application is made to vary or discharge a Special Guardianship Order in respect of that child. Such expenses can be met without means testing.

However, CCC would not normally meet the legal costs of a Special Guardianship Order where they oppose an application in respect of a looked after child or in any case involving a child who is not looked after. Applicants should be advised to seek help with legal costs from the Legal Aid Agency.

Review of Financial Support

Where financial support is paid periodically the local authority must review this:

  • On receipt of the annual statement received from the special guardian;
  • If there is any relevant change of circumstances that the special guardian agreed to notify, or any breach of a condition comes to the local authority's notice;
  • If the local authority proposes, as a result of the review, to reduce or terminate financial support or revise the plan, before making that decision the local authority must give the person an opportunity to make representations, as in relation to the review of Support Plans in Section 11, Review of Plans.

The notice must contain the same information as the notification of the outcome of the first assessment.

The local authority must, having regard to the review, and after considering any representations received within the period specified in the notice, then decide whether to vary or terminate payment of the financial support or whether to seek to recover all or part of any financial support that has been paid and, where appropriate, revise the plan.

The local authority must confirm the decision in writing, including the reasons for it and, if applicable, the revised plan.

The annual letter enclosing the Financial Assessment Review Form will include 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 Team Manager (Kinship Assessment & Review Team) for a decision.

Where Special Guardians do not return the Assessment Review Forms within the required time scale, they should be sent a reminder letter, giving 28 days notice of the suspension of payments if the information requested is not received.


13. Death of the Child

If the child with respect to whom a Special Guardianship Order is in force dies, the Special Guardian must take reasonable steps to give notice of that fact to:

  • Each parent of the child with Parental Responsibility;
  • Each guardian of the child; and
  • Where financial support, or other services, are being provided, the local authority.


Appendix 1: Good Practice: Getting it Right First Time

The following suggested good practice is taken from the Local Government and Social Care Ombudsman report Firm Foundations: Complaints about Council Support and Advice for Special Guardians (May 2018).

The following is not an exhaustive list but sets out some of the positive steps councils can take:

  • Give early, clear and unambiguous advice to people who are considering becoming special guardians. Consider how this can:
    • Explain what is special guardianship and what this means for parental responsibility, legal security and stability;
    • Explain the council's role and that of the court;
    • Set out who can apply to be a special guardian and what alternatives could be more suitable;
    • Make the process of applying to be a special guardian clear, including the role of the council in writing a report to court;
    • Explain the assessment process before becoming a special guardian. Explain that applicants may need to complete some training.
  • Be as clear as possible about the support that might be available and how the council will assess the applicant's support needs;
  • Be as unambiguous as possible about the fixed term duration of support and what it is likely to be used for;
  • Back up verbal advice and guidance in writing wherever possible, particularly where this may have long term consequences;
  • Manage expectations early on, for example where special guardians expect ongoing support or help with major personal expenditure;
  • Be as clear as possible with applicants that any support may be time limited;
  • Develop advice for social workers involved in supporting potential and actual special guardians. This could include:
    • A flow chart showing responsibilities at key stages such as suitability assessment, financial assessment, permanence panel and court;
    • A checklist of things to cover at first assessment visit (for example explaining the process and financial situation);
    • A summary of the SGO assessment process including child information (for example attachment issues and any early neglect or trauma), carers information (for example current relationship and stability).
  • Keep clear and transparent records of contact with special guardians. This is always important, particularly where guardians will probably be supported by several different social workers and other officers over several years;
  • Write support plans that are clear, in plain English and set actions that are as specific, measurable and achievable as possible so the council and guardian can review progress;
  • Make sure support plans:
    • Are shared, discussed and agreed with special guardians, and this is well documented;
    • Are written so that they are easy to evaluate and keep under review. It should be easy for the council and guardian to decide whether all the support has been provided;
    • Are regularly reviewed and kept up to date. Make sure plans continue to meet the child's needs as they change;
    • Set out the approach to calculating special guardianship allowance. Explain this at the earliest stage as possible, making clear this will be reviewed and depend on evidence of continuing needs;
    • Keep the best interests of the child at the forefront of decision making.

End