Special Guardianship Order

This how to guide explains the steps that you can take to become a Special Guardian for a child as well as how to discharge or vary a Special Guardianship Order.

What is a Special Guardianship Order?

A Special Guardianship Order is a private law order granted in the family court appointing named persons to be a child’s special guardian/s. It is intended for those children who cannot live with their birth parents and who would require a long-term placement. Special Guardianship provides an alternative route to permanence for children for whom adoption is not appropriate as it provides a degree of security, continuity and stability. 

What are the effects of a Special Guardianship Order? 

• Secures the child’s long-term placement
• Grants parental responsibility to the special guardian/s. 
• Maintains links between the child’s birth parent/s. 
• Enables 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). 
• Any existing Care Order on the child is automatically ended when the Special Guardianship Order is made. 

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).

Alternatives 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);
• 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; and
• unaccompanied asylum-seeking children, who are in need of a permanent placement, still have attachments to families abroad and may not wish to be adopted.

Who can make an application for a Special Guardianship Order?

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 child is in care of Local Authority and the Local Authority consent 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.

If you do not fit into any of the categories above, then you will be required to apply for leave (permission) from the court to make the application. 

You can apply for permission from the court on the form C2. When applying for leave, the Court will consider the following:

• The nature of the proposed application
• The applicant’s connection with the child
• Any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it
• Where the child is being looked after by the Local Authority:
  • The authority’s plans for the child’s future, and
  • The wishes and feelings of the child’s parents.

When do I need to notify the Local Authority of my intention to apply for Special Guardianship?

Before you can make an application to the court you will need to inform the Local Authority that you are intending to apply for a Special Guardianship Order. If you are required to apply for permission of the court to make the application, (as you do not fit into one of the categories above) then you should do this before informing the Local Authority. The Local Authority must be informed 3 months before the application is submitted. If the child is looked after, then this will be to the Local Authority looking after the child. If the child is not looked after, then this will be the Local Authority where you live. 

You can notify the Local Authority by simply writing them a letter informing them of your plan to apply for a Special Guardianship Order. Make sure you keep a copy of the letter for evidence that you have informed them. 

The Local Authority will then carry out an assessment as to your suitability of being a prospective Special Guardian. They will be required to write a report to the court, which will include their recommendations as to whether they believe you to be a suitable prospective Special Guardian. 

The Local Authority should ascertain and report on the child’s wishes and feelings. The report should include:

• 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;
• the implications of the making of a Special Guardianship Order for those involved;
• the merits of Special Guardianship and other orders;
• a recommendation regarding Special Guardianship; and
• a recommendation regarding contact.

Do I have to attempt mediation before making an application to the court?

It is now a legal requirement to attempt mediation before you make an application for a Special Guardianship Order. This is to see if you can resolve the issues in mediation before making an application to court. You can arrange an appointment for mediation by contacting 0300 4000 636. For more information please see our page on family mediation. 

How do I apply for a Special Guardianship Order?

No less than three months and no more than two years after notifying the Local Authority of your intention you are able to apply for the Special Guardianship Order.

You will need the following:

• Forms C1 and C13a: To apply for the Special Guardianship Order and make a statement in support of this application. The C1 form has a £263 application fee.
• Form FM1: To be signed by the mediator as proof that mediation has been attempted or to explain that mediation is not required as one of the exemption criteria listed on the form has been met
• Form C1A: supplementary form – used only if there are welfare concerns about a child
• Form EX160: fee exemption form and EX160A: guidance on fee exemptions
• Form C8: Only to be used if the applicant does not wish for the respondent to know their contact details. If you use this form please ensure that your contact details are not filled in on any other form or documents which you supply to the court as these may be visible to the respondent.
• CB4: guidance on applying for a Special Guardianship Order
• CB3: guidance on serving court forms

The person applying for the order is the “Applicant” and the person(s) who need to be notified of the application is the “Respondent”. The Respondents will be everyone who you believe has Parental Responsibility for the child, if there is a care order in force, then everyone who had Parental Responsibility before the care order was made and the child’s guardian if applicable. 

Other people you must tell will be:

• everyone who is caring for the child
• the person who provides the home in which the child is staying if the home is a registered children’s home or if it is a voluntary home and it is a refuge
• everyone the child has lived with for at least three years before you make the application
• if there is a court order in force which concerns the child and it may be affected by your application, you should tell everyone named in that order
• if there are court proceedings concerning the child already taking place and they may be affected by your application, you should tell all the people involved in those proceedings.

Once the forms are signed and dated, you will need to make additional copies for each Respondent. The original and the copies will need to be filed at the Family Court. You will need to ensure you keep a copy for your records.

The application should be made to the Family Court local to the child. The Court can transfer the case to the Court nearest the child’s home if the forms are not initially filed there. To find your nearest court please visit the Court and Tribunal Finder.

Once the Court have received the completed application it will be processed and allocated a Case Number which we would advise you to make note of as you will need to use this number for future reference. It is then the Applicant’s responsibility, unless otherwise directed by the Court, to ensure that the Respondents have a copy of the application so that they are aware of the impending Court hearing. This must be done at least 14 days prior to the Court hearing date. Service on the Respondents can be done via: 

• Recorded/Special delivery to their address
• Handing the documentation to them personally.

Once this has been done the applicant will need to send back to the Court a Statement of Service detailing the date and time service happened, the method of service i.e. post, personal service, and the forms that were sent to them. The Respondents, once in receipt of this documentation, will need to complete an Acknowledgement of Service (Form C7) and return this back to the Court. This form will also detail whether they wish to oppose the application that has been made. If the Respondent’s any welfare concerns they can complete Form C1A and return this with the C7 form. 

The initial hearing

The initial hearing will be where the Court will consider what is in dispute and will make directions about how the case will be dealt with. It is important to keep a note of the directions made and any timescales. If the Court makes an order, this will be legally binding. These are usually known as interim orders. The court could issue an interim Child Arrangements Order for the child to live with you temporarily while the proceedings are ongoing. 

What will the court consider?

During the Court proceedings, the Court will consider the Welfare Checklist. This is a list of factors that the Court considers when making any decision and includes:

1. The ascertainable wishes and feelings of the child concerned (considered in the light of their age and understanding)
2. The child’s physical, emotional and educational needs
3. The likely effect of any change in the child’s circumstances
4. The child’s age, sex, background and any characteristics which the court considers relevant
5. Any harm which the child has suffered or is at risk of suffering
6. How capable each parent, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs
7. The range of powers available to the court 

 

The court will also take into consideration the report prepared by Children Services regarding your suitability to be become a Special Guardian and their recommendations. 

When deciding whether to consider the child’s wishes and feelings, the judge will decide whether the child is Gillick competent. Gillick competency is a legal principle that the Court follows to determine whether or not a child has the age and capacity to understand proceedings and make their opinions on their wishes and feelings known. The Judge will give as much weight as they feel is appropriate to the child’s wishes and feelings in relation to their individual circumstances. There is no set age for when a child is considered competent. 

At the final hearing, the court will decide whether they are going to issue a Special Guardianship Order. The court may also issue a Child Arrangements Order at the same time to ensure the child maintains contact with their birth parents or any other family members. The order will be legally binding. 

When does a Special Guardianship Order end?

A Special Guardianship Order expires once the child reaches the age of 18, unless the order is discharged before then.

Is it possible to discharge or vary a Special Guardianship Order?

Unlike adoption, a Special Guardianship Order can be discharged or changed. This will only happen if the circumstances have significantly changed and it is in the best interests of the child. 

It is important to note that there is a legal requirement to attempt mediation with the other party prior to applying for a discharge or variation. 

The following people can apply to discharge or vary the order

• The Special Guardian
• Children’s Services if they have a Care Order
• If you have a Residence Order (granted prior to 22.04.2014) in your favour or a Child Arrangements Order stating the child should reside with you which relates to the child before the Special Guardianship Order was made.

However if you are one of the following, then you will be required to apply for leave (permission) before you make the application;

• The child
• The parent/guardian
• The step parent with Parental Responsibility 
• Any other person who has Parental Responsibility for the child immediately before the Special Guardianship Order was made. 

The people named above can apply for permission on the form C2.

The court will only give you permission to apply for the order if you can show there has been a significant change in the circumstances since the order has been made and that it is in the child’s best interests. The court is also likely to look at how successful they feel the application will be if made to the court. 

You can apply to discharge or vary the order on forms FM1  and C1. 

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, we would firstly encourage them to try and speak to the Special Guardian and explain their point of view and their reasons. If this is difficult, 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.

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 include:

• 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; and
• financial assistance.

Biological parents remain financially responsible in law for their child even when a Special Guardianship Order has been issued, 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, the following people can request an assessment from their Local Authority for support services:

• the child;
• the Special Guardian;
• a parent;
• a child of the Special Guardian ;
• any person that the Local Authority considers has 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 SpecialGuardian];
• 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; and
• 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. Where the Local Authority decides to offer support services, they should give the person notice of the services they intend to offer including, 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; or
• 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. These Regulations direct 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; and
• 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; 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; and
• the financial needs that relate to the child.

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.

Fair Access Limit

The Adoption Support Fund pays for a range of therapeutic support for adopted children and their adoptive family. Since April 2016, this has been extended to include children cared for special guardians who were ‘looked after’ immediately before the Special Guardianship Order was granted. 

To request financial support under the fair access limit, a request for an assessment will have to be made to the Local Authority. Where the assessment determines that therapeutic services would be required by the child, the Local Authority will apply to the Adoption Support Fund on your behalf. A fair access limit of £5,000 has recently been introduced. 

Applying for a Special Guardianship Order – Flowchart