A Special Guardianship Order (SGO) is an order of the Family Court introduced into the Children Act 1989 by the Adoption and Children Act 2002. An SGO can be made when a child is being cared for more often than not by people other than his/her parents until he/she reach 18.
It 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.
Potential applicants for a SGO include:-
- Anyone with whom the child has lived for at least two years;
- Any guardian of the child;
- An individual in whose favour a Residence or Child Arrangements order is in force;
- A local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application.
The Court can also make a SGO with respect to a child within any family proceedings when it is appropriate to do so.
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 also 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 dependent upon the local authority and the special guardian’s circumstances.
This is a developing area of law. If you would like to discuss this further, please contact the Family Team at Goughs who offer an initial free consultation.