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); and
- 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
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).
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 with whom the child has lived for a period of one year directly before the application; or
- the child has lived 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
- the child is in Local Authority care 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; or
- you have permission from the court to make the application
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 three 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 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 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; 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.
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.
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.
More detailed information can be found in our How-to Guide. Please note that a fee is charged for this service.