Essential and necessary information for all Local Authorities.
Special Guardianship Orders were created under the Adoption and Children Act 2002, which introduced this as a new performance option for children which came into effect from December 2005. A special guardianship order (SGO) gives parental responsibility for a child to a special guardian (SG), who can exercise it to the exclusion of others with parental responsibility. This new type of order was to allow a child, who could not live with his or her parents and for whom adoption was not considered appropriate, to live with someone permanently rather than be in local authority care long term. The original intention for this order was for it to be an alternative permanency option for older children.
One of the notable impacts post Re B-S (Children)  EWCA Civ 1146 is the increase of Special Guardianship Order (SGO), due to the test applied further to Re B (A Child)  UKSC 33 that is Adoption Orders should only be granted if “nothing else will do”.
NB: if you want to know more on Re B and Re B-S please see previous briefing.
Contrary to the original intention, SGOs are frequently been granted as permanency options for very young children and in some cases children being placed with extended family carers with whom they have no prior relationship.
In light of the increase in the use of SGOs, the DFE initiated a review which closed in September 2015, the DFE then published a report in December 2015 called Special guardianship review: report on findings-Government consultation response.
The review provided evidence for the need to create a stronger and more robust assessment framework for prospective SG. It also indicated that it is important for the SG assessment to include a robust analysis, supported by strong and intelligent evaluation. As SGOs are considered to be permanency orders, and granted on the basis that the child will remain in the SG placement until he or she is 18 years old, therefore, the assessment should include a clear analysis of the child’s long-term welfare in that placement to sit at the heart of the assessment, and form the basis for the final care plan.
The new Regulations
The Special Guardianship (Amendment) Regulations 2016
The court cannot make a SGO unless it has received a report from the local authority. The report has to deal with the suitability of the applicant to be a SG. The Schedule to the Special Guardianship Regulations 2005 prescribes what should be included in the SG report. As promised by the Government, the new regulations are in response to the review about SGOs. The Special Guardianship (Amendment) Regulations 2016 were passed on 02 February 2016 and apply to assessments commenced after 29 February 2016. They amend the original SGO Regulations 2005 schedule and prescribe additional matters about the child and the prospective SG that need to be considered by the local authority in the SG report to the court.
About the child
The amendments are as follows:
New heading to be inserted as follows:
- “any harm suffered which the child has suffered
- any risk of future harm to the child posed by the child’s parents, relatives or any other person the local authority consider relevant;”
And to the part about assessing the child’s needs, it has been amended adding the words: current or in the likely future to read as follows:
- “a description of the child’s personality, his social development and his emotional and behavioral development and any related current or in the likely future”
The prospective Special Guardians
New insertion is as follows:
- “an assessment of the nature of the prospective special guardian’s current and past relationship with the child”
In relation to the assessment of parenting capacity of the Special Guardian the assessment should include:
- “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;
- 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;
- their ability and suitability to bring up the child until the child reaches the age of eighteen;”.
In light of the new regulations the DFE has also updated the statutory guidance on SG regulations which can be found on the Government’s website.
The new additions are now mandatory factors to be identified and considered in all SG assessments commenced after 29 February 2016. All other parts of the 2016 regulations remain the same including the parts that deal with support
The intention of the additional information to be now included in all future SG reports will help to ensure that the assessment of prospective SGs are sufficiently robust and take account with clear analysis the child’s current and likely future needs; any harm the child has previously suffered; or likely risk of future harm posed by the child’s parent or other relevant person; the nature of the prospective special guardian’s current and previous relationship with the child; the ability and suitability of the prospective special guardian to bring up the child until the child reaches the age of 18.
In relation to the prospective SG’s relationship with the child will require the assessment to consider what the prospective SG means to the child and not just details of any genetic relationship. It will require the inclusion of additional information such as what if any the SG’s involvement has had in the child’s life.
There is clearly merit in these amendments. It will mean that the SG reports will be more focused and consider the prospective SG current and past relationship with the child, either in a caring capacity or in relation to contact, Also the report will consider the prospective SG’s capacity and capability to understand the child’s need to be protected from any harm posed by the child’s parents or other relatives, to recover from any abuse that the child may have suffered and to provide the child with a good level of care throughout their childhood.
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Disclaimer: The contents of this guide are for information on some of the key changes and are not intended to be relied upon as legal advice.