special guardianship

Legal case notes: special guardianship

Michael Segal explains the legal aspects of 'special guardianship'

The Children Act 1989 has been amended, by the Adoption and Children Act 2002, to provide for special guardianship. Special guardianship was introduced by a white paper in the following terms:

Adoption is not always appropriate for children who cannot return to their birth parents. Some older children do not wish to be legally separated from their birth families. Adoption may not be best for some children being cared for on a permanent basis by members of their wider birth family. Some minority ethnic communities have religious and cultural difficulties with adoption. Unaccompanied asylum-seeking children may also need secure, permanent homes, but have strong attachment to their families abroad. All these children deserve the same chance as any other to enjoy the benefits of a legally secure, stable, permanent placement that promotes a supportive, lifelong relationship with their carers, where the court decides that is in their best interests.

The White Paper gave as an example the following case study: J aged 13 and S aged 19 have been in the care of the same foster carers for some time. They came into care as the result of J disclosing sexual abuse, and are unable to return home. The foster carers and the children would like to remain together, but J does not want to be adopted. She wants to keep her birth name and have contact with some members of her birth family, but live with her foster carers. Special guardianship would provide her and her sister with a permanent home within their foster family.

The provisions relating to special guardianship orders are set out in sections 14A to 14G of the Children Act 1989.

There have already been a number of reported cases on special guardianship, some of them of a very technical nature, and some of them considering the respective merits of adoption and special guardianship (these depend very much upon their own facts), but in Re S (Adoption Order or Special Guardianship Order) [2007] 1 FLR the Court of Appeal pointed out that, as special guardianship orders fall within the Children Act 1989, the well known provisions of s. 1 of the 1989 act apply to them, ie the child’s welfare shall be the court’s paramount consideration, and the court must have regard to his ascertainable wishes and feelings, his physical, emotional and educational needs, the likely effect on him of any change in his circumstances, his age, sex, background and relevant characteristics, any harm which he has suffered, and how capable each of his parents, and any other relevant person, is of meeting his needs.

A special guardian must be aged 18 or over, and must not be the parent of the child in question. Certain persons can apply as of right for a special guardianship order, ie an ordinary guardian, any person in whose favour a residence order with respect to the child is in force, any person who has the consent of a person in whose favour a residence order with respect to the child is in force, any person with whom the child has lived for a period of at least three years and, in the case of a child in care, any person who has the consent of the local authority. All other persons can apply only with leave of the court.

The applicant for a special guardianship order must give written notice to the appropriate local authority, whereupon the local authority must investigate the matter and prepare a report for the court, dealing with the suitability of the applicant to be a special guardian, and any other matter which it considers to be relevant. The court may make a special guardianship order even though no application for such an order has been made, in which case the court itself must ask the local authority to investigate the matter and report.

Before making a special guardianship order the court must consider whether, if such an order were made, a contact order should be made, and whether any existing residence or contact order should be discharged. Upon making the special guardianship order, the court may give leave for the child to be known by a new surname, and be removed from the United Kingdom. Otherwise, no person may cause the child to be known by a new surname or (except for the special guardian, who may remove him from the United Kingdom for a period of less than three months) remove him from the United Kingdom without leave of the court or the consent of every person with parental responsibility for the child.

The effect of a special guardianship order, while it remains in force, is that the special guardian has parental responsibility for the child, and may exercise parental responsibility for him to the exclusion of any other person with parental responsibility for him. Should the child die, the special guardian must take reasonable steps to inform the parents.

The court may discharge a special guardianship order on the application of the special guardian, any parent, any person in respect of whom a residence order is in force, any other person who immediately before the special guardianship order was made had parental responsibility for the child, the child himself (provided that the court is satisfied that he has sufficient understanding to apply), or the local authority. If the child, or his parent, or a person who immediately before the special guardianship order was made had parental responsibility for the child, leave of the court is required, and leave will be given only when the court is satisfied that there has been a significant change of circumstances since the making of the special guardianship order.

The court itself may discharge or vary a special guardianship order even though no application for discharge or variation has been made.

This article first appeared in Protecting Children Update - Jul 2007

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