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Special guardianship orders
A special guardianship order (SGO) is an order appointing one or more individuals to be a child's 'special guardian'. It is a private law order made in family court and it is intended for children who cannot live with their birth parents and who would benefit from a legally secure placement.
An SGO is a more secure order than a residence order or child arrangement order because a parent cannot apply to discharge it unless they have the permission of the court to do so. Unlike adoption, it does not end the legal relationship between the child and his/her birth parents and an SGO can be considered a way of securing a child’s long-term care, whilst maintaining important links with the child’s birth parents.
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Who can apply for special guardianship orders?
You must be over 18 years of age and have a connection to the child, but you cannot be the parent of the child in question. You can make an application on your own or jointly with another person.
You can apply for an SGO if:
- You are a legal guardian of the child.
- You have a child arrangements order or residence order for the child, meaning they are already living with you.
- The child has lived with you for at least three of the last five years.
- You have the consent of the local authority, if the child is in care.
- You are a local authority foster parent with whom the child has lived for at least one year preceding the application.
- You are a relative of the child and the child has resided with you for at least one year preceding the application.
- You have the consent of all those with parental responsibility.
- You have permission of the Court to make the application.
Applying to the court
An application for an SGO can be made without the agreement of the child’s parents. There are two routes under which an SGO can be applied for: private law, where an agreement is made privately between individuals or public law, where the local authority applies to the court to secure the welfare of a child.
Details of how to apply for an SGO can be found on the government website:Become a Special Guardian.
The court must decide that a special guardianship order is the most appropriate order to make in the best interests of the child. Also, the court must have the benefit of the local authority report dealing with the suitability of the applicant and any other matters that the local authority consider relevant before it can make an order. The legal basis of special guardianship orders are set out in the Children Act 1989 section 14A.
For anyone considering applying for an SGO, it is important to get legal advice and family or friends who are applying for an SGO may be entitled to legal aid. If you are applying privately, you may also need to attend mediation prior to making your application. For more information, please see Kinship’s website.
Parental Responsibility
The person or people named on the SGO will have ‘exclusive’ parental responsibility for the child until the child turns 18, which means they will have legal rights and duties towards the child. These rights are shared with anyone named as a special guardian to the child. The child will live with them permanently and they have responsibility for the care, upbringing and any decisions relating to the child.
The SGO does not remove parental responsibility from the child’s parents but the special guardian will have the final say in most decisions. However, there are some things a special guardian cannot do without consulting the child’s parents:
- Change the child’s surname.
- Take the child abroad for more than 3 months.
- Agree to the child to be placed up for adoption.
To discharge the special guardianship order, parents would need to apply to the court and show there has been a significant change to circumstances since the order was made and it would be in the best interests of the child for it to be discharged.
The role of the local authority
To apply to become a special guardian, written notice must be given to children’s services, within the local authority where the child resides, at least three months before an application to the court is made. Children’s services are then required to carry out an investigation and complete a report. This is to determine whether the applicant is suitable to be considered as a special guardian and to address any other matter which the local authority consider to be relevant.
The Special Guardian Statutory Guidance sets out what the local authority report is required to consider:
- The developmental needs of the child.
- The parenting capacity of the special guardian or prospective 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 in respect of the child or the special guardian or prospective special guardian.
- The needs of the special guardian or prospective special guardian and their family.
- Where it appears to the local authority that there is a pre-existing relationship between the special guardian or prospective special guardian and the parents of the child, the likely impact of the special guardianship order on the relationship between that person, that child and that parent.
Support for Special Guardians
Each local authority must make arrangements for the provision of special guardianship support services. This varies across local authorities and may include:
- Financial assistance (means tested).
- Assistance with the arrangements for contact between a child, his/her parents and any relatives that the local authority consider to be beneficial.
- Respite care.
- Counselling, advice and information.
- Support groups.
- Therapeutic services.
- Training for the special guardian to support them to continue to meet the needs of the child.
An assessment would need to be completed by children’s services to determine whether a person has a need for special support services. Not all children or special guardians are entitled to an assessment but it is possible to make a request for an assessment for support services.
For more information, local authorities should have a published ‘friends and family care policy’ that will set out the support they offer.
Financial support
After an SGO is made, the child’s parents are still legally responsible for providing financially for their child but, in reality, this may not happen as they are unable or do not want to provide this support. If they are in work but they are not contributing, the Child Maintenance Service could help.
It may be possible to make an application to the Local Authority for financial support through a special guardianship allowance but financial support is not guaranteed. Financial support would be means tested and children’s services will decide what amount shall be received and they will review it annually.
The Special Guardianship Regulations 2005 Regulation 6 sets out the circumstances in which financial support it paid. Financial support is offered to help secure a suitable special guardianship order and benefit a child’s welfare, when such an arrangement could not be readily made due to a financial obstacle.
It is also worth checking eligibility for other government benefits including Universal Credit and Child Benefit. Kinship give more details about special guardianship financial support and benefits.
For further support, Citizens Advice can help review individual circumstances to ensure the correct level of benefits are being received.
Further resources
If you would like further support and advice, call our helpline on 0808 800 2222 or email us at askus@familylives.org.uk. You can talk to us online via our live chat service, which is open, Monday to Friday between 10.30am and 9pm. You may find it helps to find out how other parents and carers have coped with this on our online forums. We also have a range of free online parenting courses that can help through the ages and stages of parenting.
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