This page explains the situations where Special Guardianship might be appropriate to secure the long term arrangements for a child living with a person other than their parent. It explains the assessment process and support available.
What is Special Guardianship?
Special Guardianship is an order made by the Family Court that places a child or young person to live with someone other than their parent(s) on a long-term basis. The person(s) with whom a child is placed will become the child’s Special Guardian. The Adoption and Children Act 2002 introduced Special Guardianship and Special Guardianship Orders.
What are the effects of a Special Guardianship Order?
The effect of a Special Guardianship Order is to:
- Secure the child’s or young person's long-term placement
- Grant Parental Responsibility to the Special Guardian(s)
- Maintain links with the child’s or young person's birth parent(s)
- Enable the special guardian to have day-to-day control and to exercise their Parental Responsibility to the exclusion of all others with Parental Responsibility except another Special Guardian
Who has Parental Responsibility when a Special Guardianship Order is granted?
A Special Guardian will get Parental Responsibility for the child until the child reaches the age of 18. Unlike adoption, a Special Guardianship Order will not remove Parental Responsibility from the child's birth parent(s).
As well as making general day-to-day decisions, it is the responsibility of the Special Guardian to make important decisions concerning the long-term care and upbringing of the child, such as deciding which school the child is to attend.
A Special Guardian will have a higher level of Parental Responsibility than the birth parent(s). Therefore, the opinion of the Special Guardian will take precedence if a conflict was to arise between the parent(s) and the Special Guardian(s).
As the parent(s) retain Parental Responsibility, there are some decisions which cannot be made without their consent. For example, a Special Guardian cannot change a child's surname, or move a child abroad for more than 3 months without the agreement of others with Parental Responsibility, or the permission of the court. Additionally, a Special Guardian cannot override a parent's refusal to consent to the adoption of the child.
Why might Special Guardianship be appropriate?
A Special Guardianship Order secures the relationship between the special guardian(s) and the child or young person and enables the special guardian(s) to become more involved in decision making by giving them Parental Responsibility above and beyond that of the parents, whilst maintaining links with the child’s or young person's parent(s).
What alternatives are there to Special Guardianship?
- Adoption places a child or young person in a permanent home. Once an adoption order has been granted, the birth parent(s) lose Parental Responsibility and links with the birth parent(s) and wider family are lost in most cases.
- Long term fostering offers a secure placement for a child who is unable to live with their parent(s). However, a foster parent does not get Parental Responsibility and therefore they have no legal basis on which to make important decisions relating to the child’s care. Long-term fostering does not always allow the child to feel a sense of stability and belonging.
- A Child Arrangements Order (since 22.04.2014) is an order from the Family Court setting out arrangements for where a child is to live. Where a Child Arrangements Order sets out with whom a child is to live, that person will be granted Parental Responsibility which is on an equal level to that of the parent(s).
When might Special Guardianship be more suitable than adoption?
Special Guardianship may be more suitable than adoption if:
- An older child would struggle to deal with the status of being adopted
- The child has a good relationship with the parent(s) or members of the family, and/or the Special Guardian and parent(s) have a good relationship
- More than ‘occasional contact’ is planned between the Special Guardian and the parent(s) and
- The child stands to inherit money
- There is a need to maintain cultural links and the need is greater than the ability of prospective adopters to provide this link
- Prospective Special Guardians from minority ethnic groups may wish to offer a child a permanent family, but are opposed to adoption due to their religious or cultural beliefs
- Unaccompanied asylum-seeking children who are in need of a permanent placement but still have attachments to families abroad may not wish to be adopted
For more information on adoption, please see our page on Adoption.
In Re AJ (Adoption Order or Special Guardianship Order)  1 FLR 507 the child concerned had lived with his paternal aunt and uncle since the age of 6. A care order was made in 2002 and the birth parent(s) had little contact. In 2004, the Local Authority changed its plan with regard to the adoption. The carers wished to adopt the child but in the event of the adoption not being granted, they did not want Special Guardianship.
The reason that they did not want Special Guardianship was because the parents would still have Parental Responsibility and the aunt and uncle considered the parents volatile and unpredictable. The aunt and uncle either wanted sole Parental Responsibility, which an adoption order would provide, or for the child to be placed under a care order so that the Local Authority had joint Parental Responsibility with the parents. The judge agreed with the carers and made an adoption order.
In Re S (Adoption Order or Special Guardianship Order) No2  1 FLR 855, the court of appeal considered Special Guardianship to be more appropriate than adoption because:
- The mother had made remarkable progress since the court proceedings began
- The mother and the foster carer had an excellent relationship and each wanted the other to remain a significant figure in the child's life
- Contact was well established and would continue
- The child wanted her mother to continue to be her mother, but would like to remain living with the foster carer and maintain contact
Who can apply to be a Special Guardian?
A Special Guardian must be aged over 18 years and must not be a parent of the child. Joint applications may be made. There is no requirement that joint applicants are married. It is possible to apply for a Special Guardianship Order if:
- You are a Local Authority foster carer whom the child has lived with for a period of one year directly before the application; or
- You have had the child live with you for three of the last five years (and the child has not ceased living with you more than 3 months before the application); or
- You are the guardian of the child; or
- If the child is in care of a Local Authority and the Local Authority consents to you making an application; or
- You have a Child Arrangements Order or a Residence Order in respect of the child ; or
- You are a relative of the child and the child has resided with you for at least one year immediately pre-dating an application for a Special Guardianship Order ; or
- You have permission from the court to make the application
Do I need a Special Guardianship Order if I have a Residence Order or Child Arrangements Order for residence?
Both a Residence Order (issued prior to 22/04/2014) and a Special Guardianship Order give a person Parental Responsibility. This will also be granted to those who are named as the person with whom the child is resident under a Child Arrangements Order (issued after 22/04/2014.) In most cases, where a person obtains Parental Responsibility through a Residence Order or Child Arrangements Order, they only retain Parental Responsibility for the duration of the Order. In the majority of cases a Residence Order will end when a child reaches 16. A person who has a Special Guardianship Order will retain Parental Responsibility until a child is 18.
Special Guardianship Orders are useful where there is often disagreement between those who care for the child and others with Parental Responsibility, such as biological parents. Special Guardianship gives a higher level of parental responsibility and therefore means the Special Guardian will be the one making the day to day decisions.
Will I be assessed before I make an application for a Special Guardianship Order?
Yes. If a person wishes to apply for a Special Guardianship Order, they will be required to inform Children's Services in writing of their intention to apply 3 months before submitting their application to the court. Children's Services are required to investigate and prepare a report for the court to determine whether they believe the applicant will be suitable as a Special Guardian.
If the child in question is a looked after child, the prospective Special Guardian would need to inform the relevant Local Authority. If the child is not looked after, the prospective Special Guardian would need to inform the Local Authority where the child lives.
The Local Authority will write a report for the court determining whether they believe a prospective Special Guardian will be suitable.
What will be considered in the assessment report?
The Local Authority should ascertain and report on the child's wishes and feelings. The report should include the following:
- Information about the child
- Information about the child's family
- The wishes and feelings of the child and others
- Information about the prospective Special Guardian
- Information about the Local Authority who made the report
- A summary prepared by a medical professional
- Implications of the making of a Special Guardianship Order for those involved
- Merits of Special Guardianship and other orders
- A recommendation regarding Special Guardianship
- A recommendation regarding contact.
What kind of support can I get if I am a Special Guardian?
Under the Adoption and Children Act 2002 financial support and other services may be available for the Special Guardian, the child and the parent(s). However, if a child is not (or was not) looked after by a Local Authority, then there is no automatic entitlement to an assessment for Special Guardianship Support services. It is possible to request an assessment for support in this situation.
Examples of possible services:
- Mediation to assist with new or existing contact arrangements
- Counselling and advice and information
- Access to support groups
- Therapy services
- Training for the special guardian to meet the needs of the child
- Respite care
- Financial assistance
Biological parents remain financially responsible in law for their child even when a Special Guardianship Order has been issued, and so in most cases they will be under an obligation to pay maintenance for the child's upbringing.
Can I ask for an assessment to be carried out for support services?
The Local Authority must provide an assessment for support services to a parent, special guardian or child in relation to a child who is looked after by the Local Authority. If the child was in the care of a different Local Authority immediately before the Special Guardianship Order was granted, the original Local Authority should be contacted as they are responsible for assessing the support needs for the three years following the Special Guardianship Order being made.
If the child in question is not a looked after child then the following people can request an assessment from their Local Authority for support services:
- the child
- the Special Guardian
- a parent
- a child of a special guardian
- any person to whom the Local Authority considers to have a significant and ongoing relationship with the child
However it will be the decision of the Local Authority whether they decide to carry out an assessment. Once you have made a request, the Local Authority must inform you of their decision in writing and include reasons why they have reached that decision. You then have 28 days to respond to the decision.
What will the assessment for support services involve?
The assessment undertaken by the Local Authority will consider:
- The developmental needs of the child
- The parenting capacity of the special guardian
- The family and environmental factors which have shaped the life of the child
- What the life of the child might be like with the special guardian
- Any previous assessment undertaken
- The needs of the special guardian and their family
It is possible to apply to the Local Authority for a Special Guardianship Allowance
What will happen after an assessment for support services has taken place?
The assessment will determine whether a person has a need for special support services. The Local Authority must then decide whether to offer the support services and should give the person notice of the support services they intend to offer and if applicable the amount of financial support. The person should have the opportunity at this point to make representations regarding the proposed support. It is advisable to seek independent legal advice before you agree to any provision.
What is assistance in cash?
Regulation 3(2) states that a local authority can provide assistance in cash to a special guardian, for example:
- money to pay for a babysitter to provide respite for an evening
- money for petrol to facilitate a contact visit
This kind of assistance should not be means tested as it is being provided as part of a service rather than financial support.
What financial support is available?
It is possible to apply to the Local Authority for a Special Guardianship Allowance. The allowance is means tested but guidance is given in the Special Guardianship Regulations 2005; this directs Local Authorities to have regard to how much fostering allowance would have been paid had the child been fostered rather than cared for under a Special Guardianship Order. Recent case law confirms that the rate for Special Guardianship Allowances should be calculated in line with fostering allowances. Deductions may be made to take into account Child Benefit and Tax Credit.
When can financial support be provided?
Regulation 6 sets out when financial support can be provided by the Local Authority:
- When it is necessary to enable a Special Guardian to look after a child
- When a child needs special care due to disability, emotional or behaviour difficulties or previous neglect or abuse
- To help towards the legal costs for applying for a Special Guardianship Order, a Child Arrangements Order, a Prohibited Steps Order, a Specific Issue Order, or for applying for a financial provision for the child
- When it is necessary to contribute towards the cost of accommodating and maintaining a child
What does a financial assessment involve?
The Local Authority will usually consider the Special Guardian's means and regulation 13 of the guidance requires that the Local Authority consider:
- The financial resources of the Special Guardian
- The amount required in respect of reasonable outgoings and commitments
- The financial needs that relate to the child
If a Local Authority supports a person’s application for Special Guardianship for a looked after child they must not take into account the person’s means when considering providing financial support for legal costs.
What support can a child get under Special Guardianship?
Children who were looked after by the local authority immediately before the making of a Special Guardianship Order may qualify for advice and assistance under section 24 Children Act 1989.The child must:
- have reached the age of 16, but not the age of 21
- have a Special Guardianship Order in force if less than 18 years old
- have had a Special Guardianship Order in force when they reached the age of 18
- have been looked after by a local authority immediately before the making of the Special Guardianship Order
If a child meets these criteria, then the local authority which last looked after the child is under a duty to provide advice and assistance.
What can a parent do if there is a dispute with the Special Guardian about a decision concerning the child?
If a parent does not agree with any decision a Special Guardian has made regarding their child, then we would firstly encourage them to try and speak to the Special Guardian and explain their point of view and reasons for this. If this is difficult, then you could attempt mediation with the Special Guardian to see if you can reach an agreement about the decision.
You can contact National Family Mediation on 0300 4000 636 to arrange an appointment. If mediation is unsuccessful then the last option would be to apply either for a Specific Issue Order, asking the court to determine the issue or a Prohibited steps Order, asking the court to issue an order preventing the Special Guardian from doing something, e.g. taking the child abroad. Please see our information page on Parental Responsibility for more details on how to apply for these orders.
Can the person who has a Special Guardianship Order state in their will who they want the child to live with?
A Special Guardian can appoint a Testamentary Guardian (i.e. name a person in their will who they want to care for the child when they die). The Testamentary Guardian would obtain Parental Responsibility should the Special Guardian die. This Testamentary Guardian may still need to seek a Child Arrangements Order or Special Guardianship order if a dispute arises as to where the child should live.
Applying for a Special Guardianship Order - Flowchart
- Attend court hearing. Please see our page on attending court for information on the process
More detailed information can be found in our How-to Guide. Please note that a fee is charged for this service.