Recently, the Family Team at Blacks have seen a significant rise in the number of enquiries from prospective Special Guardians obtaining Special Guardianship Orders (“SGOs”).
What is a Special Guardianship Order?
SGOs are private law orders made under the Children Act 1989 and were introduced in December 2005. They allow for one or more individuals to be appointed as a child’s Special Guardian. The Order lasts until the child is 18 years old. In an ideal situation, a child would be living with their parents in a loving and caring home; unfortunately, this is not always possible. For example, a parent may fall ill and no longer have the ability to provide sufficient care for their child, or may not have the capacity to make decisions that are in their child’s best interests.
Who can apply for a Special Guardianship Order?
Any person aged 18 years and over can apply for a SGO, although some people need permission of the court to apply. A prospective Special Guardian must give the relevant Local Authority three months’ notice of their intention to apply for an Order. A person who requires the Court’s permission must have this in place before they can give notice to the Local Authority of intention to apply. The Local Authority will then carry out a report into the suitability of the prospective Special Guardian to care for the child.
The Responsibilities of a Special Guardian
A crucial point for prospective Special Guardians to note is that SGOs give a person enhanced Parental Responsibility (“PR”) for a child to the exclusion of any other person with PR – such as the child’s parents. This means that they will stand in the shoes of that child and make decisions about the child’s care including schooling and medical treatment.
A Special Guardian cannot change the child’s surname or remove the child from the jurisdiction for a period of more than three months. The child’s birth parents (and anyone else with PR) should also be consulted on issues such as internal UK relocation and major medical procedures, and they can also make an application for a Specific Issue Order to challenge a Special Guardian’s decision if they do not agree with it.
Crucially, SGOs bridge the gap between Adoption and Child Arrangements Orders (formerly residence/contact orders). Whilst an Adoption Order would provide a child with a permanent home, it severs a child’s link with their birth parents. Under a SGO the child will also have a secure and permanent home whilst retaining a link to their birth parents through wider family members.
The child’s birth parents have the opportunity to apply to revoke the SGO in the future, providing the Court grants them permission to apply. To obtain permission, the birth parents have to demonstrate that there has been a ‘significant change in circumstances’ since the SGO was made. A SGO therefore gives parents who were not able to care for their child at one point (perhaps due to alcohol dependency or being in a violent relationship) the opportunity to turn their lives around and be parents again, providing that they can demonstrate this to the Court’s satisfaction. We would always recommend that parents obtain legal advice before making this application.
A recent study conducted by the University of York found that the majority of Special Guardians were family carers, with grandparents being the largest group. The Law Society has revealed concerns that SGOs in some cases are being used by the Local Authority as they have a lower threshold for judging whether to place a child, compared to other permanent options such as adoption. The case of Re B-S has made “the degree of analysis, evidence and evaluation needed for a care plan for adoption much higher” in order to satisfy the court that “nothing else will do”. The Law Society has noted that the rise in the number of SGOs coincides with a fall of 51% in Adoption Orders.
The Department for Education has published statistics which indicate an increase in the number of children who have been provided with a permanent home. We understand that SGOs have played an important role in this change as between April 2014 and March 2015; a total of 3,520 children left care as a result of SGOs being granted to their carers. Apparently, this is an increase of 5% from the previous year and is linked to the increased use of SGOs by Family Courts over the past few years. Since 2010, the use of SGOs has risen by 158%.