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9.1 Special Guardianship Orders Guidance


Contents

1. Introduction
  1.1 Who Can Apply?
  1.2 Parental Responsibility
2. Procedures
  2.1 Applications Where the Child is not Looked After or Known to the Local Authority
  2.2 Children in Care
  2.3 Special Guardianship Arising During Proceedings
  2.4 Applications Made by Foster Carers
  2.5 Reports to Court - Process
3. Provision of Support
  3.1 Assessment of Support Needs Pre and Post Order
  3.2 Process for Planning Support
4. Financial Support
  4.1 Former Foster Carers
  4.2 Post Order Support
5. Eligibility for Leaving Care Services


1. Introduction

Special Guardianship offers an option for children needing permanent care outside their birth family. A Special Guardianship arrangement should be assessed as offering the child the best chance to achieve good outcomes in his/her life.

It will address the needs of a significant group of children, mainly older, who need a sense of stability and security but who do not wish to make the absolute legal break with their birth family that is associated with adoption.

It will also provide an alternative for achieving permanence in families where adoption, for cultural or religious reasons, is not an option.

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

Special Guardians will have Parental Responsibility for the child and, whilst this will be shared with the child's parents, the Special Guardian will have the ability to exercise this responsibility without seeking permission from the parents, other than in situations where the law requires the consent of more than one person with parental responsibility.

A Special Guardianship Order made in relation to a Child in Care will replace the Care Order and the Local Authority will no longer have Parental Responsibility. 

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

For further details about the Special Guardianship as a permanence option for Children in Care, see Permanence Planning Guidance.

1.1 Who Can Apply?

Application for a Special Guardianship Order may be made by:

  • Any guardian of the child;
  • A local authority foster carer with whom the child has lived for one year immediately before the application;
  • A relative of the child with whom the child has lived for a year preceding the application;
  • Where the child is in the care of a local authority, any person who has the local authority consent, [1] including a foster carer (where the one year minimum care provision will not apply);
  • Anyone who holds a Child Arrangements Order, or who has the consent of all those in whose favour a Child Arrangements Order is in force;
  • Anyone with whom the child has lived for 3 out of the last 5 years;
  • Anyone with the consent of all those with Parental Responsibility;
  • Any person, including the child, with leave of the court;
  • In addition, in any family proceedings concerning the welfare of a child, the Court may make a Special Guardianship Order, regardless of whether an application has been made;
  • The application cannot be made by the parent of a child or by the current partner of a parent.

The prospective special guardian(s) should be given a copy of Family and Friends Care Booklet (KCC 2010) - to follow which explains different formal and informal routes to kinship care, including Special Guardianship.

[1] A person who is, or was at any time within the last 6 months, a local authority foster parent of a child may not apply for leave to apply for an SGO unless (s)he has the consent of the local authority, or (s) he is a relative of the child or the child has lived with him for at least one year preceding the application.

1.2 Parental Responsibility

The Special Guardian will have Parental Responsibility for the child and will have clear responsibility for the day-to-day decisions about caring for the child. The child’s parents will also 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.

In addition there are certain steps in a child’s life which require the consent of every-one with Parental Responsibility, for example:

  • The change of name of the child;
  • The removal of the child from the United Kingdom for longer than three months;
  • The sterilisation of a child.


2. Procedures

Whether the child is in care or not, it is the responsibility of the local authority to prepare the report for court. In the case of non-CIC it is the local authority of residence. For a Child in Care it is always the local authority holding the responsibility for the child.

2.1 Applications Where the Child is not Looked After or Known to the Local Authority

Arrangements may have evolved within families, or be the consequence of a sudden event. Some cases may have the consent of all with Parental Responsibility, whereas others may be contested. 

If the child is not known to Kent Specialist Children's Services and not Looked After by another local authority then the adoption service will be responsible for the assessment of special guardians residing in Kent.

Some children who are privately fostered may become the subject of Special Guardianship applications. Responsibility for the court report will be with the private fostering social worker in the area in which the child resides.

2.2 Children in Care

If the child is CiC responsibility for preparing the court report rests with the child’s social worker. If the application is being made by the child’s foster carer(s) then the report is completed in liaison with the fostering support  team. Even if the child is not currently in care, they may have been in care in the past, or previously known to the CSW/CIC team. In these cases the Children’s Team who previously dealt with the case should prepare the report.

2.3 Special Guardianship Arising During Proceedings

The Special Guardianship application may be initiated during the course of care proceedings by one of the applicants cited above in Section 1.

If the prospective Special Guardian(s) are related to the child, if placement cannot be delayed, and the child is to live with the applicants on an interim care order, it will be necessary for the carers to be temporarily approved as foster carers. The nominated officer must be informed if the plan is for the carers to become Special Guardians, as they may wish to give an opinion.

Where relatives are to be approved as foster carers under the Fostering Services (England) Regulations (2011), the Fostering Panel must also be informed if the plan is for the carers to apply to become special guardians as they may wish to give an opinion.

Note that Courts may also request a Special Guardianship report when considering another matter e.g. adoption, or in care proceedings. The same information is required from the child’s social worker for the report as in other special guardianship applications.

The process for assessing financial support (i.e. presentation of papers to the Area Resource Panel (see Adoption Order, Special Guardianship Order and Child Arrangements Order Allowances).

2.4 Applications Made by Foster Carers

Steps to be taken:

  1. Professionals involved in the case may be considering the potential of foster carers to become special guardians. It is important to discuss the possibility with the fostering social worker prior to raising expectations with the foster carers and/or the child. The fostering social worker will be aware of any background issues that may assist or hinder an application. In some cases the foster carer’s may express initial interest. The views of social workers with other children in the same placement should be sought;
  2. The carer(s) should be advised by the fostering social worker to confirm their interest in writing to the Service Manager CiC and the Team Manager Fostering;
  3. If there is to be a change to the Care Plan the IRO must be consulted;
  4. The fostering social worker and child’s social worker will undertake a joint visit to the child’s carers;
  5. A Permanency Planning Meeting should be held. The Placement Planning Meeting planning meeting will consider the implications of the plans for the fostering role, motivation, impact on the birth family, the foster family, and any siblings of the child;
  6. The new Care Plan for the child will be formally agreed at a CiC Review;
  7. Matches of children must take account of the child’s views; the child’s Care Plan; recent written assessments of the child and his or her birth family, potential adopters and their children;
  8. Once the assessment is underway another joint visit should be arranged to the carers by the assessing child's social worker and fostering worker. The purpose of the meeting is to clarify:
    1. The implications of the plan for the carer(s)’ continued registration as foster carer(s);
    2. How best to secure the placement in relation to the carer(s) ongoing fostering role and whether an ‘on hold’ period is required. The aim of any agreed changes should be to assist the child to settle as a permanent member of the family. Because of the child’s experiences of separation and loss, and their need for a sense of security and stability, it is not usually appropriate for new placements to be made in to the family, between agreement of the match by panel and the Special Guardianship Order being granted. The special guardian’s family need to adjust to the permanence of the arrangement too and should be able to concentrate primarily on the child’s needs during this period. Where an exception is sought the respective team leaders (Children and Families, and Fostering) should consult and agree that a new placement would not be detrimental to the child. If they are unable to agree then the Service Manager and Head of Fostering must be notified;

      Other exceptions might be:
    3. Agreement to be ‘on hold’ for new fostering placements from the date of the Special Guardianship Order for a given period. (The purpose of this period is intended to provide an opportunity for emotional adjustment to the changed legal status of the child);
    4. Agreement to be on hold from the date of the agreement of the match and beyond the date of the special guardianship order (combination of both of the above);
    5. Agreement to withdraw from fostering completely.
  9. Fostering will review the Form F and:
    1. Provide leaflet Your Guide to Special Guardianship and Family and Friends Care Booklet (KCC 2010) to the carer;
    2. Write to the carer’s referees SGO referee request letter;
    3. Write to the applicant’s G.P. SGO applicants letter to GP;
    4. Arrange for DBS checks to be updated if necessary.
  10. The adoption placement meeting or special guardianship planning meeting will consider the implications of the plans for the fostering role, motivation, impact on the birth family, the foster family, and any siblings of the child;

    The child’s social worker will prepare the Report for SGO application to court, see SGO Court Report Action in the Forms section.

    In cases where a KCC foster carer is applying for the SGO this will be in collaboration with the fostering social worker, who will complete the applicant’s section of the Special Guardianship Report (Form C) based on the Form F and experience of caring for children/relationship with this child. See Connected Person’s Special Guardianship Report Guidance.
  1. Follow the process for agreeing financial support, where appropriate (separate processes apply if the application is under the Staying Together Policy) please see Adoption Order, Special Guardianship Order and Child Arrangements Order Allowances Procedure, Financial Support for Special Guardians.

2.5 Reports to Court - Process

The prospective Special Guardian(s) must give three months’ written notice to the local authority that they intend to apply to the court for a Special Guardianship order. Regardless of where they reside, if the child is in care, the prospective Special Guardian(s) should notify the local authority responsible for the child on the Notice of Intent to Apply for Special Guardianship form.

On receipt of notice the Schedule, under regulation 21, should be prepared Report for SGO application to court.

While the statutory period for the preparation of the court report is 3 months, if the local authority considers that this is inadequate for the necessary advice and reflection to take place, the applicant should be advised to delay their application to allow sufficient time. If the application has already been made then submissions to the court will be necessary, but possible, to allow more time.

The report to Court must address:

  • Any harm that the child has suffered;
  • Any risk of harm to the child posed by the child’s parents, relations or any other person that the local authority considers relevant;
  • The child’s current needs or likely future needs;
  • An assessment of the prospective guardian’s parenting capacity including their understanding of the child’s current and future needs, particularly any needs that the child may have arising from harm that the child has suffered;
  • Their understanding 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 considers 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 18.

See SGO court report in the Forms section.

See also Connected Person’s Special Guardianship Report Guidance.

In writing up the court report the domains of the Assessment Framework should be followed; a Signs of Safety approach should be taken in assessing risk.  Practitioners and their managers will find the Secure Base Model approach helpful in assessing, and supporting, caregiver’s capacity to offer substitute care. 

All applicants are expected to have enhanced Disclosure and Barring Service (DBS) checks, and the Local Authority databases should be checked, with any issues arising being followed up. Information about the prospective Special Guardian, which must include the applicant’s background history, education, employment, parenting capability and experience, their relationship with the child and family, and proposed contingency plans should the arrangement break down.

Support issues must be considered (see further section).

The health of all applicants must be considered by a medical practitioner using the Adult Health Medical form, in non CIC cases the applicant is not expected to undertake an Adult Health medical. There is a Letter to GPs in non CIC SGO applications to cover the health of applicants in such cases. 

Where the child is not previously known, Notice of Intent to Apply for Special Guardianship should be sent to Central Adoption Team, The Stable Block, Oakwood House, Maidstone. In other cases it should be sent to the child's social worker.

No less than three-months after giving notification to the local authority the applicants should make their formal application at the court which made the care order.

The Report to the Court should be submitted when written notification is received by the social worker from the court.


3. Provision of Support

Under the regulations support may be financial (see criteria below) or as follows:

  • Services to enable groups of children for whom a special guardianship order is in force or being formally considered, special guardians or prospective special guardians, and the child’s parents to discuss matters relating to special guardianship e.g. contact;
  • 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 top be beneficial to the welfare of the child;
  • Services in relation to the therapeutic needs of the child;
  • Assistance for ensuring the continuance of the relationship between the child and special guardian, including training to meet any special needs;
  • Respite care;
  • Mediation in relation to matters relating to the special guardianship order;
  • Special Guardianship Support Services should not be seen in isolation from mainstream services. It is vital to ensure that children and families involved in special guardianship arrangements are assisted in accessing mainstream services and are aware of their entitlement to social security benefits and tax credits as appropriate.

3.1 Assessment of Support Needs Pre and Post Order

Children in Care - this section is under review.

Consideration should be given to any support needs, by the writer of the court report, and set out on the Special Guardianship Support Plan, which must be given to the prospective special guardians for consideration and confirmed. Financial support can be included on the plan once confirmed by the Area Resource Panel and Child Allowances Review Team. Agreement must be obtained before the support plan is submitted with the court report.

Post Order - If the child was in care immediately prior to the order being granted, and a request is made for an assessment of support needs by the child, a special guardian or a parent of the child, the request for assessment must be complied with. In other cases the support assessment is discretionary but it should be evident from preliminary assessment as to whether fuller investigation is warranted (see Section 3.2 Process for Planning Support). The Special Guardianship Support Plan should be used. Requests for assessment should also be considered if made by another child of the special guardian, or anyone with a significant ongoing relationship with the child.

If the child was Looked After by another local authority, but the Special Guardians reside in Kent, then responsibility for support remains with the local authority of origin for 3 years after the order is granted.

Equally responsibility for Children in Care by KCC is retained for 3 years if the Special Guardians live, or move, outside Kent.

The cut-off period for support does not apply to financial support agreed prior to the order being granted.

KCC’s contact services provider, CAFIS, must be consulted about contact arrangements which are to be set up post order, and must be notified before the proposals are put before the court The needs of birth relatives, including siblings, for contact support should be assessed using the appropriate format Birth Relatives Contact Needs Assessment.

If the assessment demonstrates a need for practical support, e.g. ongoing therapeutic needs, ongoing advice, the Adoption and Special Guardianship Support Team should be consulted and they should be involved in drawing up the plan.

At the age of 16 the young person, who was in care immediately before the order was granted, becomes eligible for the provisions of the Leaving Care Act, as a “Qualifying Person”. The responsible authority is the one that last Looked After the young person. If they are resident outside Kent it may be more appropriate to refer them to local services.

Assistance may be considered for young people who continue in full time education. The order continues to have effect until the age of 18, and support may continue after that age if the young person continues in full time education, and until such time as the course is completed. A referral should be made to the 16Plus service in appropriate cases.

Children who are Not Looked After

For children who are not currently, or have never been in care, an assessment may be done on request. However, so that resources are not diverted from Children in Care, the Area Resource Panel will need to agree in principle that the child’s needs and circumstances, and those of the special guardians, warrant assessment for financial support, prior to the Means Test being initiated. See Adoption Order, Special Guardianship Order and Child Arrangements Order Allowances Procedure.

Where the local authority has discretion, and it is minded not to assess, then the applicant must be advised in writing and given reasonable time to make representations.

If the child was not in care at the point the order was granted then KCC is responsible for children resident in Kent if the social worker considers it necessary for an assessment of support needs to be done. Reasons must be given if the assessment is not completed.

3.2 Process for Planning Support

Support should be:

  1. Targeted i.e. for a specific purpose;
  2. Creative -assistance with provision of services may be more beneficial than financial support;
  3. Timely;
  4. Reviewed.

The Support Plan

The purpose of the Support Plan is to identify, as far as possible, the child’s immediate needs, and future potential needs, with which they and their carers might need support. This Plan should identify the needs, how these needs might be met and services accessed, and any potential resource / budgetary implications.

The Plan should be developed through the Permanency Planning meeting which will involve consultation with the carers and the child, (if of sufficient age and understanding), the child’s current social worker, fostering and when necessary an adoption social worker, who will be familiar with the potential needs of children placed for permanence. Other agencies should be consulted and involved as appropriate, e.g. if there is a need for additional services from health the PCT should be consulted.

The plan should include the current and potential needs of the child/family, the objectives to be met, key services to be provided, who will be responsible for ensuring services are accessed and likely timescales for achieving the Plan. Under the relevant regulations the local authority must review the plan annually or whenever there is a change in circumstances.

Once complete, the Plan will need to be submitted to the Area Resource Panel in order that they can consider and agree to the budgetary/resource implications.

It should be borne in mind that each situation will need to be considered on a case by case basis.

Identification of Need

In identifying resources to meet need and budgetary implications, consideration should be given to whether the needs can be met from within established community services or whether a specifically commissioned service is required. Should it be felt that needs may be met through established community services, then consultation should take place with the Primary Care Trust or Education at the time the Plan is made.

Some of the needs, which may arise in families, have been identified in the Statutory Adoption Guidance and the Special Guardianship Guidance. Assessing the Support Needs of Adoptive Families DFES 2007 is still current and explains how to assess the needs of the child and the family using the Assessment Framework and associated tools. BAAF’s ‘Good Practice Guide - The Role of Special Guardianship’, John Simmonds 2011, comprehensively covers support assessments in relation to special guardians.

Families will be better able to meet the needs of children in their care if they are provided with full medical and educational history in relation to the child at the Permanency Planning Meeting stage.

Need for Counselling, Advice and Information

Consideration should be given to current available resources e.g. CAFIS, PCTs, CAMHS, GPs, advice lines etc.

Health Needs

Reference should be made in this Section to the child’s current and future needs, both in terms of physical health - including illness and disability - and emotional well-being.

Needs in this section might include the potential for the child to need therapy / direct work in relation to emotional and behavioural difficulties or the continuing consequences of past abuse or neglect.

In the event that a professional assessment, the source of which is agreed by the child’s carers and relevant staff from the Directorate, should recommend that the child requires therapeutic services, the Directorate would expect that such assistance would initially be sought through community provision (e.g. local health services, CAMHS, etc) and if appropriate would support the family in accessing these services. However, if appropriate community services were not available, then application can, in the case of children who were in care immediately pre-order, be made to the Adoption Support Fund.

Educational Needs

It would be anticipated that a child’s educational needs will be met through mainstream education resources.

Support Needs of the Family

These needs might range from peer group support, assistance with contact arrangements, through to services for families to promote attachment or prevent disruption.

Applicants should sign the Plan to signify their agreement. There is a 28 day period to consider the Support Plan and make representations about the proposals to the County Adoption Manager. Once agreement is reached the County Adoption Manager writes to confirm the plan SGO support needs agreement letter.


4. Financial Support

See Adoption Order, Special Guardianship Order and Child Arrangements Order Allowances Procedure.

4.1 Former Foster Carers

See Staying Together Policy for detailed information.

4.2 Post Order Support

Special Guardians may apply for an assessment of support post order, every case will be considered individually.


5. Eligibility for Leaving Care Services

The Children Act 1989: Guidance and Regulations; Volume 3: Planning Transition to Adulthood for Care Leavers 2010 covers eligibility for leaving care services for children subject to a special guardianship order as follows:

Children who were Looked After by a local authority immediately before the making of a Special Guardianship Order may qualify for advice and assistance under the 1989 Act. Section 24 (1A) of the 1989 Act provides that the child must:

  • Have reached the age of 16, but not the age of 21;
  • If less than 18 years old, have a special guardianship order in force;
  • If 18 years old or above, have had a Special Guardianship Order in force when they reached that age; and
  • Have been Looked After by a local authority immediately before the making of the Special Guardianship Order.

The relevant local authority should make arrangements for young people who meet these criteria to receive advice and assistance under the 1989 Act. Regulation 22 of the Special Guardianship Regulations 2005 provides that the relevant local authority is the one that last Looked After the child (paras 2.12 and 2.13).

Young people of secondary school age who are made subject to an SGO under the Staying Together Policy will be considered for entitlement to receive an equivalent level of support with respect to Higher or Further education, as young people (aged 18-24 years) who are Former Relevant Children under the Children Act 1989. Consideration will be given on a case by case basis and agreed by the Area Resource Panel. Kent County Council’s Leaving Care Service must be informed of the proposal.

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