Applications for Special Guardianship

RELATED CHAPTER

This chapter should be read in conjunction with Calderdale's Permanence Policy

RELEVANT GUIDANCE

DfE, Special Guardianship Guidance (January 2017)

Adoption Support Fund

Please note - this procedure is under review pending developments within the local authority and at a regional level - for advice on all matters relating to Special Guardianship arrangements, please contact the Fostering team on 01422 266020.

1. Introduction

Special Guardianship offers a further option for children needing permanent care outside their birth family. Special Guardianship is a legal status that can offer greater security without absolute severance from the birth family as in adoption.

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

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.

A Special Guardianship Order made with in relation to Child Looked After will replace the Care Order and the local authority will no longer have Parental Responsibility.

2. Who may Apply?

Applications for Special Guardianship may be individual or joint. Joint applicants do not need to be married. Special Guardians must be 18 or over.

The following persons may apply without having to obtain leave of the court:
  • Any guardian of the child;
  • Any person who holds a 'to live with' Child Arrangements Order for the child is to live;
  • Where the child is subject of a Care Order or an Interim Care Order, any person who has the consent of the Local Authority;
  • A local authority foster carer with whom the child has lived for 1 year immediately preceding the application (even if the local authority does not consent) [1];
  • Any person who has the consent of each person named in a Child Arrangements Order as a person with whom the child is to live;
  • Anyone with whom the child has lived for a period of at least 3 years, providing the child has not ceased to leave with the proposed applicant more than 3 months before the making of the application;
  • Anyone who has the consent of all those with Parental Responsibility for the child;
  • A relative with whom the child has lived for at least 1 year immediately before the application;
  • Any other person (including the child and other than a parent) may apply for a Special Guardianship Order if they have obtained the leave of the court to make  the application.

The parents of a child may not apply to become their own child's Special Guardians.

[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.

3. 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 to the exclusion of anyone else who might have Parental Responsibility (apart from another Special Guardian).

The child's parents will continue to hold Parental Responsibility but their exercise of it will be limited, and there will be no obligation to consult them in relation to day to day matters of the child's care. The parents will, however, retain the right to consent or not to the child's adoption or placement for adoption. In addition there are certain steps in a child's life which require the consent of everyone with Parental Responsibility for example:

  • Causing the child to be known by a different surname;
  • The sterilisation of a child; or
  • Removing the child from the United Kingdom for longer than 3 months

4. The Circumstances in which a Special Guardianship Order may be Made

Public Law Proceedings

The Court may make a Special Guardianship Order in any family proceedings concerning the welfare of the child. This applies even where no application has been made and includes adoption proceedings.

Private Law Proceedings

Any person entitled to apply for a Special Guardianship Order must give 3 months' written notice to their local authority of their intention to apply.

A person who is not entitled to apply for a Special Guardianship Order cannot trigger the 3 month notice without first obtaining leave from the court to make an application for a Special Guardianship Order.

In relation to a Child Looked After, the notice will go to the local authority looking after the child. In all other cases, the notice will be sent to the local authority for the area where the applicant resides.

The local authority will then have a duty to provide a report to the Court. The notice of intent must be sent to the Fostering administrator if the child is looked after, and to the legal department in all other cases. The legal department will send a copy of the notification to the fostering team manager. The date the notice of intent is received by the local authority begins the three months notice period.

Where the local authority has received notice from an applicant or a request for a report from the Court, it should send written information about the steps it proposes to take in preparing the report to the prospective Special Guardian and the parents of the child in question. This should include information about Special Guardianship support services and how to request an assessment of needs for support.

Once notice has been received that an application for Special Guardianship is to be made, the notice should be passed to the allocated social worker or, if the child is not previously known, arrangements must be made for the case to be allocated to a social worker.

The allocated social worker should arrange a planning meeting with the connected carers pod as soon as practicable after the notice is received. For a non-looked after child, the responsibility for preparing the court report will remain with the locality social worker. For a child who is looked after, this will be led by the connected carers pod in relation to the assessment of the adults and the ability to meet the child's needs is undertaken jointly with the child's social worker and the connected carer social worker.

The planning will clarify the steps to be taken, who will carry out the necessary assessments and who will contribute to the report for the Court. This includes the assessment of support needs. Court timescales will need to be clarified.

Court Report

The social worker or social workers preparing the Court  reports should be suitably qualified and experienced. There are no specific requirements as to the level of qualification or experience required and it will be for the manager of the relevant social work team to ensure that the allocated worker is competent to write the report.

In all cases there will need to be:

  • An assessment of the current and likely future needs of the child (including any harm the child has suffered and any risk of future harm posed by the child's parents, relatives or any other person the local authority considers relevant);
  • An assessment of the nature of the prospective Special Guardian's current and past relationship with the child;
  • An assessment of the prospective Special Guardian's parenting capacity including:
    1. Their understanding of, and ability to meet, the child's current and likely future needs, particularly any needs the child may have arising from harm that the child has suffered;
    2. Their understanding of, 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 consider relevant, particularly in relation to contact between any such person and the child;
    3. Their ability and suitability to bring up the child until the child reaches the age of eighteen.
  • An Assessment of the proposed contact arrangements and the support needs (see Section 10, Assessment for Support) of the child, parents and the prospective special guardian.

The assessment of the applicants should include their medical history, the references received and the Disclosure and Barring Service and other statutory checks undertaken for the assessment.

A full list of the matters to be included in the report is set out in Court Reports in Adoption/Special Guardianship Procedure.

5. Assessment and Approval of Special Guardianship for Children Looked After

As part of care proceedings, permanence planning meetings should ensure that the roles and responsibilities of workers are laid out in the SMART plan. The assessment of the adults capacity to provide appropriate care through childhood and adolescence is led by the connected carers social worker and the ability to meet the particular child's needs is undertaken jointly with the child's social worker and the connected carer social worker.

6. Report for the Court

The social worker or social workers preparing the Court report should be suitably qualified and experienced.

A full list of the matters to be included in the report is set out in Court Reports in Adoption/Special Guardianship Procedure.

Once completed, the Court Report should be submitted by the author(s) to their Practice / Service Manager for approval. This will include the Support Plan if relevant Appendix 1/3 SG - 04v. The Court Report should be checked by legal prior to sharing with the proposed Special Guardian and filing at court.

7. Vary or Discharge of Special Guardianship Order

A Special Guardianship Order can be varied or discharged on the application of:

  • The Special Guardian;
  • The local authority in whose name a Care Order was in force before the Special Guardianship Order was made;
  • Any person who is named in a Child Arrangements Order as a person with whom the child is to live;
  • With the leave of the court:
    • Any parent or guardian of the child;
    • Any step-parent who has Parental Responsibility;
    • Anyone who had Parental Responsibility immediately before the Special Guardianship Order was made but no longer has it;
    • The child (if the court is satisfied that the child has sufficient understanding).

Where the applicant is not the child and the leave of the court is required, the court may only grant leave if there has been a significant change in circumstances since the Special Guardianship Order was made.

The court may during any family proceedings in which a question arises about the welfare of a child who is subject to a Special Guardianship Order, vary or discharge the Order in the absence of an application.

A Care Order 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.

8. Special Guardianship Support

The local authority must make provision for a range of Special Guardianship support services.

Special Guardianship support services are defined as:

  • Financial support as specified by the regulations (see Section 13, Financial Support);
  • Services to enable children, Special Guardians and parents to discuss matters relating to special guardianship;
  • Assistance, including mediation, in relation to contact between the child and their parents or relatives or significant others;
  • Therapeutic services for the child. Based on the assessment of needs, local authorities can apply for funding from the Adoption Support Fund further information is also available;
  • Assistance to ensure continuance of the relationship between the child and the Special Guardian, including training to meet any special needs of the child; respite care; and mediation;
  • Counselling, advice and information.

The services described above may include cash assistance (single payment) following an assessment of support needs by the connected carer's pod and approval by the Service Manager.

Support services should not be seen in isolation from mainstream services, including Early Intervention services. It is important to ensure that families are assisted in accessing these mainstream services and are aware of their entitlements to tax credits and universal benefits.

Where the child was previously Looked After, the local authority that looked after the child has responsibility for providing support for the first 3 years after the making of a Special Guardianship Order. Thereafter the local authority where the Special Guardian lives will be responsible.

If a child is not Looked After, the local authority where the Special Guardian lives has the responsibility for Special Guardianship Support.

Ongoing financial support which has been agreed before the Special Guardianship Order is made, remains the responsibility of the local authority that agreed it so long as the family meet the criteria for payments.

9. Entitlement to Assessment for Special Guardianship Support

Where the child is Looked After or was Looked After immediately prior to the making of the Special Guardianship Order, the following people MUST receive an assessment at their request:

  • The child;
  • The Special Guardian or prospective Special Guardian;
  • A parent.

Where the child is not Looked After or was not Looked After immediately prior to the making of the Special Guardianship Order, the following people MAY be offered an assessment of their need for Special Guardianship support services:

  • The child;
  • The Special Guardian or prospective Special Guardian;
  • A parent.

In all cases, whether the Special Guardianship child is looked after or not, the following people also MAY be offered an assessment of their need for Special Guardianship support services:

  • A child of the Special Guardian
  • Any person with a significant ongoing relationship with the child

If a local authority decides not to assess in cases where they have discretion as above, they must notify the decision in writing, including reasons for the decision, to the person making the request, including their right to make a complaint. The person who asked to be assessed should be given least 28 days to appeal.

10. Assessment for Support

The assessment should be based on the Working Together to Safeguard Children and include the following:

  • The developmental needs of the child;
  • The parenting capacity of the Special Guardian or prospective Special Guardian to meet the child's needs;
  • Family and environmental factors that have shaped the life of the child, and the capacity of the Special Guardian or prospective Special Guardian to respond to those experiences;
  • Comment on how life with the Special Guardian might be for the child;
  • Any previous assessments of the Special Guardian that is relevant;
  • The needs of the Special Guardian or prospective Special Guardian and their family;
  • The likely impact of the Special Guardianship Order on the relationship between the child, parent and Special Guardian.

At the end of the assessment, a draft Special Guardianship support plan will be produced and once the necessary management approval has been obtained, the social worker must inform the person requesting provision of its outcome, including:

  • Information about the outcome of the assessment and the reasons for it;
  • Where it relates to financial support, the basis on which this is determined;
  • The services (if any) that the local authority proposes to provide to help meet the child's needs;
  • If financial support is to be paid, the amount and conditions attached.

11. The Special Guardianship Support Plan

If an assessment (either as part of proceedings or post order)identifies the need for ongoing support services, a Special Guardianship support plan must be completed by the child's social worker ad / or assessing connected carers social worker.

Other agencies, such as education and health, may need to be consulted about the contents of the Plan.

The Plan should be written in such a way that everyone affected can understand and set out:

  1. The services to be provided;
  2. The objectives and criteria for success;
  3. Timescales for provision;
  4. Procedures for review;
  5. A named person to monitor the provision of services in accordance with the Plan.

Special Guardianship Support will be subject to the approval of the Connected Carers Practice Manager and the Service Manager responsible for the delivery of Special Guardianship support.

Once the necessary managerial approval to the plan has been obtained, the social worker must send the proposed plan to the person requesting support, and allow 10 working days for that person to make representations about the proposed plan. The social worker should also give information to the person concerned about who to contact to obtain independent advice and advocacy.

Where representations are received, they should be referred to the manager who authorised the plan  to decide whether to amend or confirm the Plan. The allocated social worker must then write to the person concerned setting out the final Plan.

Where the child is, or was previously, a Child Looked After, the child's social worker must obtain consent from the Service Manager (Locality) to pay legal fees for the prospective special guardians.

Subject to assessment and with the agreement of the Service Manager, Children Looked After; young people who are subject to a Special Guardianship Order may be provided with additional support and services consistent with those provided to Eligible Young people, as part of a support plan.

12. Review of Special Guardianship Support Plans

The support plan which includes the financial arrangements for each carer will be subject to an annual review. All payments need to be arranged before the making of the Order. This process will apply to all Children Looked After.

The fostering team will be responsible for the review of the Special Guardianship Support Plans and these must be reviewed taking into account the following:

  • Any change of circumstances affecting the support;
  • At whichever stage of implementation of the plan is considered most appropriate;
  • In any event at least annually.

On receipt of the Special Guardianship support plan and Court Order, the fostering team will send out the relevant paperwork.

The reviews may be a paper exercise where there is no change or a minor change in circumstances. However, if there is a substantial change of circumstances, e.g. a serious change in the behaviour of the child, it would normally be necessary to conduct a new assessment of needs.

Any change to the Special Guardianship Support Plan will be subject to the approval of the Team Manager or Service Manager.

Following the annual financial review, the Special Guardian will receive a statement as to the outcome of the assessment, the basis on which financial support is determined and the proposed amount that would be payable, along with details of any conditions attached to the payment.

If the local authority decides to vary or terminate the provision of support after the review, notice in writing must be given and the person concerned should be given 10 working days to make representations. The Special Guardian may make further representations and appeal the outcome of the assessment to the Service Manager Children Looked After within 28 days from the date of the first assessment.

13. Financial Support

Special Guardians must be helped to access any benefits to which they are entitled; this will usually include child benefit and (subject to eligibility) universal benefit support.

It is not an automatic eligibility to be assessed for ongoing financial support.

Financial support is payable to facilitate arrangements for a person to become the child's special guardian, where this is considered to be beneficial to the child's welfare, and to support the continuation of these arrangements after the order has been made.

Regulation 6 sets out the circumstances in which financial support may be paid to a special guardian or prospective special guardian. These are:

  1. Where it is necessary to ensure that the special guardian or prospective special guardian can look after the child;
  2. Where the child needs special care which requires a greater expenditure of resources than would otherwise be the case because of illness, disability, emotional or behavioural difficulties or the consequences of past abuse or neglect;
  3. Where the local authority consider that it is appropriate to contribute to any legal costs, including court fees, of a special guardian or prospective special guardian associated with:
    1. The making of a special guardianship order or any application to vary or discharge such an order;
    2. An application for an order under section 8 of the Act (a contact order, a prohibited steps order, a residence order or a specific issue order);
    3. An order for financial provision to be made to or for the benefit of the child.
  4. Where the local authority consider it appropriate to make a contribution to the expenditure necessary for the purpose of accommodating and maintaining the child, including the provision of furniture and domestic equipment, alterations to and adaptations of the home, provision of means of transport, and provision of clothing, toys and other items necessary for the purpose of looking after the child.

Payment of financial support under (b) is intended where the child's condition is serious and long-term. For example, where a child needs a special diet or where items such as shoes, clothing or bedding need to be replaced at a higher rate than would normally be the case with a child of similar age who was unaffected by the particular condition.

Financial support paid under (c) is payable so that the local authority may contribute to initial legal costs where appropriate but also any future legal costs that are associated with the order, to continue to support the existence of the order, again, where the local authority consider this to be appropriate.

The only circumstance when the local authority MUST disregard means is when providing financial support in respect of legal costs, including fees payable to a court in respect of a child who is Looked After where the local the authority support the making of the Special Guardianship Order.

In many special guardianship arrangements, contact between the child and their relatives or others with whom the local authority consider the child to have a beneficial relationship is very important. Where assistance with travel costs is required this may either be given in cash under regulation 3(1)(b) or, if such costs are on a recurring basis, as part of any financial support provided under regulation 6(2)(b) to support the arrangements for ensuring the special guardian can look after the child.

The local authority must also take account of any other grant, benefit, allowance or resource available to the person in respect of his needs as a result of becoming a Special Guardian of a child. Financial support cannot duplicate any other payment available to the Special Guardian.

The Special Guardian's means will be considered when ongoing financial support is being considered. They should therefore be asked to complete a Financial Assessment Form, which, when completed, should be passed to the Revenues and Benefits Service who will carry out the means assessments.

Once the means assessment has been carried out, the Benefit Assessment Unit will send written notification of the outcome to the relevant social worker, who must present this to the Service Manager, responsible for Special Guardianship support for approval.

The Benefits Section should then write to the Special Guardian setting out the amount of financial support agreed and information in relation to the following:

  • Whether financial support is be paid in regular instalments and if so, the frequency of payment;
  • The amount of financial support;
  • The period for which the financial support is to be paid;
  • When payment will commence;
  • Conditions for continuing payment and date by which conditions are to be met, i.e. returning Review Forms;
  • Arrangements and procedure for review and termination.

A copy of this letter should be sent to the fostering team.

Means may be disregarded in relation to:

  • The initial costs of accommodating a child who has been Looked After;
  • Recurring travel costs in contact arrangements;
  • Any special case requiring greater expenditure due to illness, disability, emotional or behavioural difficulties or the consequences of the past abuse or neglect of a child previously looked after.

14.Support for Special Guardians who have Previously Fostered the Child

Financial support cannot normally include the payment of remuneration to the special guardian or prospective special guardian for care of the child.

Regulation 7 provides, however, that where the special guardian or prospective special guardian previously fostered the child and they received an element of remuneration in the financial support paid to them as the child's foster parent that the local authority may continue to pay that element of remuneration for two years from the date of the special guardianship order. These payments can continue for longer than two years if the local authority considers this appropriate.

The purpose of the two year transitional provision is to enable local authorities to maintain payments to foster carers who become special guardians, at the same rate as they received when they were fostering the child. This should give the family time to adjust to their new circumstances.

15. Urgent Cases

Where a person has an urgent need of a service, the assessment process should not delay provision and arrangements can be made for support to be provided as a matter of urgency in appropriate cases. The approval of the Team Manager and Service Manager (depending on the amount) will still be required. The local authority will need to review the provision as soon as possible after the support has been provided in accordance with the procedures set out above.

16. Special Guardian Duty on the Death of the Child

If the child with respect to whom a Special Guardianship Order is in force dies, the Special Guardian must take reasonable steps to give notice of that fact to:

  • Each parent of the child with Parental Responsibility; and
  • Each guardian of the child.

Trix procedures

Only valid for 48hrs