Special Guardianship Orders
A Guide for Grandparents
Special Guardianship Orders will be of particular
interest to grandparents and other kinship carers or
foster carers who have or wish to have children live
with them.
Foster parents may also
applying for a Special Guardianship Order should they wish to secure a legal arrangement
which enables their long term care of a foster child. Unlike adoption, a
Special Guardianship Order does not sever all legal ties with the birth family.
What
is a Special Guardianship Order?
What effect does Special Guardianship have
if the children are in Local Authority care?
Can
a Special Guardian nominate another person as a guardian for the children in a
will?
How long does a Special Guardianship Order last?
Can
I apply for a Special Guardianship Order?
Can more than one person be named as a Special Guardian?
Can
parents apply for a Special Guardianship Order?
Are
there any other restrictions on applying for a Special Guardianship Order?
Can the Court grant a Special Guardianship
Order even when no application has been made?
What forms need to
be completed for an application to court to be a special guardian?
What is a Special Guardianship Order? <Back to Top>
A Special Guardianship Order grants an individual
(or more than one person) certain rights in relation to children named in the
order. Those rights include:
1. parental responsibility;
2. the right to take the children abroad for a period of less than
3 months;
3. the right to make decisions which affect the named child to
the exclusion of any other person who holds parental responsibility for the
child unless related to matters where the law requires that the consent of each
party with parental responsibility is given;
Examples of matters where a Special Guardian cannot
independently overrule the rights of others with parental responsibility
include:
a. changes
to a child's surname;
b. granting
permission for the child to marry if between the age of 16 and 18;
c. over
the placing of the child for adoption;
d. consent to
a child being sterilised;
e. granting
parental responsibility to a father or step parent via Parental
Responsibility Agreements.
Examples of matters where the Special Guardian
would not need the consent of others include decisions about religion, medical
treatment, school selection and other matters related to day to day care.
While a Special Guardianship Order is in force no
one other than the Special Guardian can remove the child from the Court’s
jurisdiction (e.g. England and Wales) without the written consent of every
other person who holds parental responsibility for the child or the leave of
the Court.
What
effect does Special Guardianship have if the children are in Local Authority
care? <Back
to Top>
A Special Guardianship Order automatically
discharges a Care Order previously granted to Local Authority.
Can a Special Guardian nominate another person as a guardian for the
children in a will? <Back
to Top>
Yes.
How long does a Special Guardianship Order last? <Back to Top>
You will remain a Special Guardian until the child
reaches the age of 18 unless the Court discharges the order at a later date.
Can I apply for a Special Guardianship Order? <Back to Top>
You have the right to apply for a Special
Guardianship Order if:
1. You are the child’s guardian (e.g. named in
the parent’s will).
2. You have a Residence Order made in your favour in respect of the child.
3. You are a relative and the child has lived
with you for at least one year before the application is made.
4. You are not a relative, but the child has
lived with you for at least three years in the preceding 5.
4. You
have been appointed as a foster parent and the child has lived with you for at
least 12 months immediately prior to your application.
5. If a Residence Order is in force, and you have
the consent of each of the persons in whose favour
the Residence Order was made.
6. If the child is in the care of the Local Authority, and you have the Local Authority’s consent to
apply.
7. If no Residence Order is in force and the
child is not in the care of the Local Authority, you have a right to apply if
you have the consent of each party who has parental responsibility for the
child.
Otherwise, you must seek the court’s
permission (read on).
Can more than one person be named as a Special Guardian? <Back to Top>
Yes, and it is possible to make a joint
application.
Can parents apply for a Special Guardianship Order? <Back to Top>
No (at least not for their own children).
Are there any other restrictions on applying for a Special Guardianship
Order? <Back
to Top>
Yes. Three months prior to making your application,
you must write to the Local Authority where the child is normally resident
informing them of your intention to do so.
If you need to ask the Court’s permission to apply
for a Special Guardianship Order, the Court’s permission must be granted prior
to your contacting the Local Authority.
Following receipt of your notification, the Local
Authority must investigate your suitability to act as a Special Guardian and
prepare a report for the Court. The Court cannot grant a Special Guardianship
Order unless it is in receipt of the report from the Local Authority.
The Local Authority report must details of:
1. the child’s
circumstances including whether or not they have brothers or sisters;
2. the relationship
they have with other members of their family;
3. arrangements for
contact with the other members of the family;
4. consideration of the
child’s educational, religious and cultural needs;
5. the child’s wishes
(if the child is old enough to understand);
6. information about
both parents’ relationship with the child and their circumstances;
7. the parents’
wishes;
8. the circumstances
and wishes of the person applying to become a special guardian and their
willingness to accommodate the child’s and parents’ wishes;
9. the prospective
Special Guardian’s parenting ability and their reasons for applying;
10. medical information
in relation to the child, the parents and the person applying to become the
Special Guardian;
11. an assessment as to
how Special Guardianship would meet the child’s needs in comparison to other
forms of Court Order and whether these may be more suitable.
12. what level of
support services the Local Authority intends to provide;
13. details of the Local Authority’s previous involvement with
the child and family.
Can the
Court grant a Special Guardianship Order even when no application has been
made? <Back
to Top>
Yes, if the Judge believes the Order to be in the
children’s best interests. However, the Court must first direct that Social
Services prepare a report and consider the contents of that report prior to
making the Order.
When Social Services
prepare a report, should this include the opinions and circumstances of the
birth parents? <Back
to Top>
Yes.
What do I do if I disagree
with the decisions being made by a Special Guardian in relation to the child? <Back to Top>
Ideally, you should first attempt mediation to
resolve your differences of opinion. Any holder of parental responsibility who
disagrees with the decisions being made by a Special Guardian can also ask the
Court for permission to apply for a Special Issue Order or Prohibitive Steps
Order to resolve the disagreement.
Is there support and advice available for Special Guardians and families
affected by this type of Order? <Back to Top>
Yes. If the child was in the care of the Local
Authority, the Local Authority must carry out an assessment to determine what
support will be required which might include counseling, facilitating contact
with other family members, financial assistance, or mediation.
If the child was not in Local Authority care, then
the Local Authority may carry out an assessment as to the level of support
required if requested to do so by the child, the parents, the Special Guardian or
any other individual who has a significant relationship with the child.
|
Key Differences /
Similarities |
SGO |
|
Grants Parental Responsibility to the
holder |
YES |
|
Prevents other holders of parental
responsibility from making applications to the Court unless they have the
Court’s permission |
YES |
|
Grants greater rights than for other
holders of parental responsibility. |
YES |
|
Removes all legal rights of other holders
of parental responsibility |
NO |
|
Normally lasts until the child is: |
18 |
|
Removes the parents’ obligations to
financially support the child |
NO |
|
Enables the holder to receive child
benefit, and tax credits. |
YES |
|
Possibility of financial support from the
Local Authority (means tested) |
YES |
|
Possibility of assistance with legal costs
by the Local Authority |
NO |
What forms need to be completed for an application to court to be a
Special Guardian? <Back
to Top>
You must
complete Forms
C1 and C13a.
If you are
using the services of a solicitor, they will do this for you.
Remember that:
1. three
months prior to making your application, you must write to the Local Authority
where the child is normally resident informing the authority of your
intention to do so.
2. If you
need the Court’s permission to apply, you should seek this prior to contacting
the Local Authority. To apply for permission, you need to complete Form C2.
Support
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