What is a Special Guardianship Order
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:
- parental responsibility;
- the right to take the children abroad for a period of less than 3 months;
- 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;
- the right to nominate another person as a guardian for the children in a will.
Examples of matters where a Special Guardian cannot independently overrule the rights of others with parental responsibility include:
- changes to a child's surname;
- granting permission for the child to marry if between the age of 16 and 18;
- over the placing of the child for adoption;
- consent to a child being sterilised;
- 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.
A Special Guardianship Order automatically discharges a Care Order previously granted to Local Authority.
How long does this Order last?
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?
You have the right to apply for a Special Guardianship Order if:
- You are the child´s guardian (e.g. named in the parent´s will).
- You have a Residence Order made in your favour in respect of the child.
- You are a relative and the child has lived with you for at least one year before the application is made.
- You are not a relative, but the child has lived with you for at least three years in the preceding five.
- 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.
- 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.
- If the child is in the care of the Local Authority, and you have the Local Authority´s consent to apply.
- 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 there be more than one Special Guardian?
Yes, and it is possible to make a joint application.
Can parents become Special Guardians?
No (at least not for their own children).
Are there any other restrictions?
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:
the child´s circumstances including whether or not they have brothers or sisters;
- the relationship they have with other members of their family;
- arrangements for contact with the other members of the family;
- consideration of the child´s educational, religious and cultural needs;
- the child´s wishes (if the child is old enough to understand);
- information about both parents´ relationship with the child and their circumstances;
- the parents´ wishes;
- the circumstances and wishes of the person applying to become a special guardian and their willingness to accommodate the child´s and parents´ wishes;
- the prospective Special Guardian´s parenting ability and their reasons for applying;
- medical information in relation to the child, the parents and the person applying to become the Special Guardian;
- 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.
- what level of support services the Local Authority intends to provide;
- details of the Local Authority´s previous involvement with the child and family.
A Judge can make an Order for Special Guardianship even if no application has been made (if the Judge finds this 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 make their report, they should include the opinions of the birth parents.
What do I do if I disagree with a Special Guardian?
If you hold parental responsibility for the children, and you disagree with the Special Guardian about arrangements for the children, ideally you
should first try to resolve matters yourself. If this fails, you should attempt formal mediation, and if that fails, you can ask the court for permission to
apply for a Specific Issue Order or
Prohibited Steps Order.
Is there support for Special Guardians?
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.
- Does a Special Guardianship order grant Parental Responsibility to the holder? Yes
- Does it prevent other holders of parental responsibility from making applications to the Court unless they have the Court´s permission? Yes
- Does being a Special Guardian grant me greater rights than other holders of parental responsibility? Yes
- Does it remove all legal rights of other holders of parental responsibility? No
- Does special guardianship last until the child is 18? Yes
- Does my being a special guardian remove the biological parents´ obligations to financially support the child? No
- Does being a special guardian enable me to apply for child benefit, and tax credits? Yes
- Is there a potential to gain financial support from the Local Authority (means tested)? Yes
- Is there a possibility of assistance with legal costs from the Local Authority? No
What forms are needed to apply?
To apply for a Special Guardianship Order, you must complete Form C1 and Form C13a.
There is a fee for applying for a Special Guardianship Order which must accompany the forms (see our page on Court Fees).
If you are using the services of a solicitor, they will do this for you.
- 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.
- 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.
Special Guardianship Package
This pack includes our guide to special guardianship orders and the necessary forms to apply to court. £2.50
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Michael Robinson © 2012
Family law information for parents whose children are resident in England and Wales
Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen's printer for Scotland.
The Custody Minefield