Special Guardianship Orders in Care Proceedings

To become a Special Guardian you must be at least 18 years old.

Certain people have the automatic right to apply for a Special Guardianship Order. This applies in each of the following situations:

• You are already the child’s guardian; or
• You already have a Child Arrangement Order saying that the child should live with you; or
• You are a relative or a Local Authority foster carer and the child has lived with you for at least one year immediately before the application; or
• You are not a relative but the child has lived with you for at least 3 years immediately before the application; or
• There is a Child Arrangement Order for the child to live with someone else, and that person consents to you applying for Special Guardianship; or
• The child is in Local Authority care, and the Local Authority consents to you applying for Special Guardianship; or
• Everyone who has Parental Responsibility for the child consents to you applying for Special Guardianship

If none of the above apply then you can still make an application for a Special Guardianship Order but before you go ahead you will need to obtain the permission of the Court to proceed. We can advise you about when permission may be granted.

A parent of the child cannot apply for a Special Guardianship order under any circumstances. 

A Special Guardianship Order will only be made in circumstances where the child’s parents are not able to care for the child. Before a Special Guardianship is made, the Court will look at how capable the Special Guardians are of meeting the child’s needs and a full assessment has to be carried out by the Local Authority. This can take around 3 months.

When deciding if a Special Guardianship Order is the best course of action, the Court’s first concern is always the welfare of the child. They will look at a number of things, including the child’s feelings, wishes and their physical, emotional and educational needs. The Court will also consider the child’s age, sex, background and any harm which they have suffered or are at risk of suffering. This is all to make sure that what they are doing is in the child’s best interests.

A Special Guardianship Order gives the special guardian certain rights.

They gain Parental Responsibility for the child in question which means they become responsible for the child and entitled to make all of the important decisions about the child’s upbringing.

The parents will not lose any Parental Responsibility and the special guardian should consult with them about any important decisions. But, if there is a disagreement that can’t be settled, the Special Guardian will be entitled to the final say.

Special Guardians are entitled to ask the Local Authority to assess their need for any support to help them care for the child. This can include practical support, and payment of a financial allowance.

Special Guardians may take the child out of England and Wales for up to 3 months without the permission of anyone else with Parental Responsibility.

Generally, we advise that the Special Guardian discuss any plans to take the child out of the country with the parents. For periods of longer than 3 months either everyone with Parental Responsibility must consent, or the special guardian must ask the court for permission

There are some restrictions on what a guardian with Parental Responsibility can do. The Special Guardian cannot:

• Change the child's name without the consent of all others with Parental Responsibility or, if an agreement can’t be reached, an order from the Court allowing the change.
• Consent to the child being adopted.

A special guardianship order lasts until the child is 18 years old. It is seen as a long term/permanent arrangement for the care of the child. Because of this, the parents are restricted when asking the Court to bring the special guardianship order to an end.

Before a parent can make any application to the court for a Special Guardianship Order to be discharged, they would first need the permission of the Court. Permission to apply to Court will only be granted if the parent can show that there has been a change of circumstances since the Order was made.

They would also need to show that there would be a reasonable chance of the Court application being successful. This is a complex area of law and if you find yourself in this situation, it’s important to contact us as soon as you can for specialist legal advice.

All special guardians are allowed to make an application to the Local Authority to be assessed for support services. This is to help them give the child in their care the best care during the transition and beyond.

Support services can include:

• Therapy for the child
• Training for special guardians
• Financial support
• Support groups for children, parents and special guardians for them to discuss issues relating to special guardianships
• Help with contact between the child and their parents or relatives

If you are being assessed as a special guardian and feel that you need any support at any stage, you should raise your concerns with the social work team who prepared the special guardianship report. They will then be under a duty to assess what support you should get in your role as special guardian.

Your case will be dealt with by the Family Court. This is a specialist Court that only ever deals with family cases. The cases are usually dealt with in private and members of the public aren’t allowed into the Court so your privacy can be protected.

Different types of cases are dealt with by different Judges. Some cases are dealt with by Magistrates, who are Lay Judges working alongside a qualified legal adviser. In other cases you will have either a District or a Circuit Judge. These are highly trained and experienced lawyers. For the most complicated cases, a High Court Judge will hear your case.

We can explain who will be dealing with your case and what this means for you.

Legal Aid may be available to cover any legal costs, including being represented in Court. If you already have Parental Responsibility for the child, and if care proceedings have been started, you will be entitled to Legal Aid whatever your financial circumstances. In other cases Legal Aid may be available depending on your financial circumstances, and the strength of your case.

We can advise you about the availability of Legal Aid, and where appropriate help you to make an application for Legal Aid.