It can be a very stressful situation for all involved if a child needs to be placed under someone else’s care, for whatever reason. Who is able to be the child’s legal guardian, and how do you go about legally transferring responsibility? In this article, we will delve into Special Guardianship Orders (SGOs), what they are, when they may arise and who can apply for one.
What is a Special Guardianship Order?
A Special Guardianship Order (SGO) is a formal court order made by the Family Court which places a child in the care of another person, usually someone with a close relationship to the child such as a grandparent, close relative or family friend, and this will grant this person parental responsibility for the child. The person wishing to obtain an SGO must apply to the court where they will consider their suitability and the child’s needs, based on a report from the local authority and if an SGO is granted you’ll be responsible for looking after the child until they’re 18.
SGO was introduced into the Children Act 1989 by the Adoption and Children Act 2002 and was implemented in England and Wales in December 2005 as a way to provide greater security and stability for a child who cannot return to live with their parents.
When may a Special Guardianship Order arise?
A Special Guardianship Order typically arises where a Local Authority has become involved with concerns relating to a child, and wishes to support the child’s upbringing, but does not seek to take the child into care. Instead, they would rather provide a legally secure placement for the child with someone they are close with. It provides an alternative to adoption, foster care or child arrangements orders.
Who can apply for a Special Guardianship Order?
You must be over the age of 18 to apply for a SGO and you cannot be the parent of the child in question. You can make an application on your own or jointly with another person who meets the following criteria. Potential applicants for a SGO include:-
- You’re already the child’s legal guardian;
- Anyone with whom the child has lived for at least two years;
- Any guardian of the child;
- An individual who currently has a Residence or Child Arrangements Order;
- A local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application;
- Anyone who has the consent of those with parental responsibility;
- You have the agreement of the local council, if the child is in care.
The Court can also make a SGO with respect to a child within any family proceedings when it is appropriate to do so and in the best interest of the child.
How can I apply for a Special Guardianship Order?
If you meet the above criteria you are eligible for making an application for a SGO. You can also use a family mediator to get assistance throughout this process or to help make arrangements with the child’s family to avoid having to apply to the court.
- Three months before you apply to become a special guardian you need to tell your local council in writing that you plan to make an application;
- When you start your application there are several forms that must be filled out and sent to your local family court;
- Within 10 days of the court receiving your application, you will be sent a case number and a date to set out a timetable for your case and how it will be dealt with – this is known as a first directions hearing;
- You must send the date and location of this hearing to everyone with parental responsibility for the child, alongside a copy of your initial application – a further list of other people you must notify can be found here.
- The court will decide if you will be granted a SGO in a final hearing, where they will consider what is in the best interest for the child and assess all evidence provided by you, the local authority and any witnesses.
It should be noted that each family proceeding is different and it is advised to get in contact and speak with a solicitor or other legal professional who can give you advice tailored to your situation.
What is the difference between a Special Guardianship Order and a Child Arrangements Order?
An SGO gives a Court an alternative to a Child Arrangements order (formerly called a Residence order or Contact order) and an Adoption order. So what’s the difference?
A Child Arrangements order specifies who the child is to live with (and also spend time with), usually following the parents’ separation. The parents retain Parental Responsibility. If the person in whose favour a Child Arrangements order is made is not one of the parents, that person also acquires Parental Responsibility for as long as the order lasts. Parental Responsibility is therefore shared.
An Adoption order has the effect of severing all legal links to the child’s birth family and extinguishing the parents’ Parental Responsibility.
The SGO is a ‘halfway house’. It allows the child to have security and maintain long term links with his/her birth family but, crucially, gives the special guardian the final say if issues concerning the child’s upbringing can’t be agreed with the parents, subject to some exceptions (see below). An SGO may be appropriate where it is important for the child to retain a relationship with other family members such as parents, brothers or sisters, but is to be brought up by a person other than the parent who is to be in the ‘driving seat’ regarding decisions if necessary.
What rights or responsibilities does a Special Guardian have?
A Special Guardian has Parental Responsibility for the child and he/she is able to make day-to-day decisions on behalf of that child, for example in relation to medical, educational and religious needs. The child’s birth parents retain their Parental Responsibility, but the special guardian’s decision takes precedence over the parent’s if a conflict were to arise.
There are some decisions that the special guardian could not make without the parents’ consent or permission of the court. For example, the special guardian cannot change the child’s surname or take the child abroad for more than 3 months, nor can he/she override the parents’ refusal to consent to adoption.
Where a Special Guardianship Order is made, additional access to support and help in the child’s placement (for example access to counselling services and financial help with certain expenses), may be available depending upon the local authority and the special guardian’s circumstances.
How can Goughs help?
At Goughs, we are able to assist at all points from initial advice, to making your application, to representing you within proceedings. If you believe that a Special Guardianship Order may be needed or if Children’s Services have recommended this, it is best to seek advice at the earliest opportunity. We are able to guide you through this process and will discuss what may be the best course of action for you. We offer free of charge initial appointments at any of our offices, please contact us to arrange an appointment.
