What is a Special Guardianship Order

A Special Guardianship Order which is also referred to as an ‘SGO’ is an Order that can be made by the Family Court under the Children Act 1989. This order will appoint a person as a special guardian of a child. This means the person or persons named will obtain ‘enhanced’ parental responsibility for the child and the child would live with them. Parental responsibility is all the rights, duties, and responsibilities that a parent has for a child.This means the Special Guardian will make decisions about the child’s day to day care including important decisions in relation to issues such as health and education. A mother automatically has parental responsibility,  a father will not have it unless he was married to the mother at the time of the child’s birth, or if he was registered as the father on the birth certificate. He can obtain parental responsibility by way of a formal agreement or a court order, if he can meet the necessary criteria.

Whilst a Special Guardian will be able to make decision for the child, the basic legal links between the child and their birth family are preserved. However, subject to any other existing order, a Special Guardian is entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility including their birth parents. Whilst it is not a legal obligation, a Special Guardian is expected to consult parents in respect of issues about the child’s care, such as their education, however if an agreement could not be reached, the Special Guardian could override the wishes of a parent. There are some decisions which a Special Guardian cannot make unilaterally, these include:

• Changing the child’s surname.
• Moving abroad or taking the child abroad for more than 3 months.
• Consenting to certain medical treatment such as sterilisation or life pro-longing or shorting medical treatment.
• Consenting for the child to be adopted.
• Previously consent could not be provided for the child to be married under the age of 18, however due to the recent changes in legislation, marriage before the age of 18 is no longer permitted in any event.

A Special Guardianship Order is intended to offer a child permanence and stability when they are unable to remain with their birth family and when adoption is not considered suitable for the child. Once an order is made, it remains in place until a child reaches the age of 18 (unless the Court discharges the Order earlier).

Who can apply for a Special Guardianship Order

There are two ways in which an application for a Special Guardianship Order arises. This is either when an agreement is reached privately between individuals (i.e. a parent and a family member or friend) or when the local authority makes an application to the Court, usually as part of Care Proceedings.

A Special Guardianship Order can not be made in favour of someone under the age of 18 nor can a parent of the subject child apply for the Order. A Special Guardianship Order can be made soley or in joint names. The application can be made by the following:

• By the child’s legal guardian
• By a person with a Child Arrangements (live with) Order
• Someone the child has lived with for 3 out of 5 of the last 5 years and has not ceased to live with for more than 3 months prior to the application being made.
• The child’s relative or foster carer with whom the child has lived with for at least one year prior to the making of the application.
• Someone who has consent from all the people with parental responsbilty for the child.
• If the child is in the care of the local authority and they consent to the application being made.

If none of the above apply then the application could still be made if the Court grant’s permission.

When can a Special Guardianship order be made

The Court may not make a Special Guardianship Order unless it has first received a report from the local authority.

A person seeking a Special Guardianship Order should first provide written notice to the local authority of their intention to make an application, 3 months prior to the application being made. Upon receipt of this notice, the local authority should commence an assessment of that person/s suitability to be a Special Guardian for the child in question.

If the child in question is already the subject of Care Proceedings, it may be that the local authority may approach a potential carer about undergoing such assessment.

How can a Special Guardianship order be made

In order to apply or a Special Guardianship Order you will need to complete a form C1 or if already in proceedings or require permission for the application, a form C2. A supplemental form C13A should also be completed. These forms can be found at: Children Act forms - GOV.UK (www.gov.uk)

If the local authority have issued care proceedings in respect of the child and support a Special Guardianship Order being made, they may seek the Courts permission to consider the application on your behalf.

Support under a Special Guardianship Order

The Local Authority is under a duty to make arrangements for the provision of a support package for Special Guardian’s and this  includes giving consideration to counselling, advice, information, respite and financial support. These matters are however discretionary. 

The support offered will be very much dependant on the prospective Special Guardian and child’s circumstances.

Alternatives to Special Guardianship Orders

Whilst it may be that a prospective Special Guardian is sure they want to pursue a Special Guardianship order when seeking to be a long term carer for a child, it is vital they are aware of the other options that may be available. These can include:

 Adoption – An adoption order places a child in a permanent home and once such order has been made the birth parents lose parental responsibility. In some cases, the ties with the birth family may be lost subject to what is considered to be in the child’s best interest.  Unlike a Special Guardianship order, this order can not be varied or discharged.

Long-term fostering – this would offer a long term secure placement for the child, however, would not give the carer parental responsibility for the child and therefore no legal basis to make decisions for the child. The child would be ‘looked after’ by the local authority which means they would be subject to the statutory requirements of being a looked after child, and often fostering is under a Care Order.

Child Arrangements Orders – This is an Order that sets out where a child should live and provides that person with parental responsibility to the same level as that of the parents. This order would not offer security when it comes to caring and making important decisions about a child, should a carer and parent disagree.

Other considerations when a Special Guardianship Order is made

Contact – As the legal ties between a birth parent and a child is not severed when a Special Guardianship Order is made, it is likely the Special Guardian will be expected to promote contact with the birth family. How such contact takes place, including the frequency, will be subject to individual circumstances.

Inheritance – Special Guardianship Orders are not covered by the rules of intestacy and therefore if a Special Guardian wished to leave any assets to the child, they would need to provide for this in their Will.

Whether a Special Guardianship Order is right for you will be very dependent on your own personal circumstances and therefore it is always best to seek specialist legal advice. 

We have a number of experienced child care law professionals across our 4 offices in Nottingham, Mansfield, Derby and Chesterfield, therefore if you require any advice about Special Guardianship Orders or any other family or child care law matters, please do not hesitate to contact us and we will endeavour to assist you.

• Care