Special Guardianship Orders

Dealing with the death of a loved one is one of the most difficult experiences that a person can go through. This grief is made all the more painful when the loved one in question is taken before their time and leaves behind a young child or children without a parent to take care of them.

In these circumstances, members of the wider family often step up and agree to raise the child in their parents’ stead. There are occasions, for example, where adult siblings, uncles/aunties or grandparents will give the child a home and ensure that they are looked after.

Whilst the immediate concern is always going to be meeting the child’s needs, complications can arise when decisions have to be made about the child and the person looking after them does not have Parental Responsibility (“PR”). People with PR are entitled to have a say in major decisions about the child, such as:

• Where the child should go to school
• What religion the child should practice
• The giving or withholding of medical treatment, and
• Dealing with their money or property

In these circumstances, it may not be appropriate or possible for the person caring for the child to adopt them. Adoption is the legal process by which individuals become a child's parents, assuming full legal and parental responsibility for the child, despite not being his or her natural parents. Doing so legally severs the link between a child and their birth parents. In the circumstances when a child’s natural parent/parents have passed away, severing the child’s link with them may not be in their best interests as it may impact on their sense of family identity.

If it is not appropriate for the child to be adopted, an alternate option is to make an application for a Special Guardianship Order (“SGO”). An SGO is a private law order that appoints a person or persons as a child's Special Guardian. It gives a person PR for a child. Unlike an application for a person to be granted PR (e.g. an application to be granted PR by a father who was not named on a child’s birth certificate), a Special Guardian can exercise PR to the exclusion of any other person with PR, except for another Special Guardian. A Special Guardian can make decisions about the child's care, such as schooling or medical treatment, that override the decisions and wishes of the child's parents or a person holding a Child Arrangements Order. The only restrictions on a Special Guardian’s PR are that they cannot change the child's surname or remove the child from the jurisdiction for a period of three months or more without the permission of every other person with PR or an order of the Court.

A SGO lasts until a child reaches the age of 18 or is discharged by the court.

Who can apply?

Any person who is aged 18 or over and is not the parent of the child can apply for an SGO. However, in order to apply for an SGO, you may first have to apply to the Court for permission to apply for an SGO. Unless one of the below exceptions apply, leave to apply will need to be obtained. The exceptions include:

1. Any guardian of the child (e.g. if you are appointed a guardian in a child’s Will)
2. Any individual in whose favour a ‘live with’ Child Arrangements Order (what used to be called a residence order) is in force in respect of the child.
3. Any person with whom the child has resided for a period of at least three years (this need not be continuous but must not have begun more than five years before, or ended more than three months before the application is made).
4. Any person who has the consent of each of those persons (if any) who have PR.
5. A Local Authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application.
6. A relative with whom the child has lived for at least one year immediately preceding the application.

The application process

Before the application for an SGO can be made, notice must be given to the Local Authority of your intention to apply for the Order. If you require permission to apply for the Order, this will need to be obtained before notice is served on the Local Authority. Notice must be given three months prior to the application for an SGO being filed. During this time, the Local Authority will prepare a report providing their opinion on the applicant’s suitability to be a Special Guardian. This report will be provided to the Court when the application for an SGO is made.

The Local Authority’s report is likely to include information such as:

• A summary of the child's health and the health of the prospective Special Guardian prepared by a medical professional.
• The implications of making the SGO for those involved.
• A recommendation regarding special guardianship.
• Any harm which the child has suffered.
• The child's current and likely future needs.
• The ability and sustainability of the placement until the child turns 18.

When considering whether to make the SGO, the Court will take into account the details set out in the Local Authority report, as well as the factors contained in the Welfare Checklist of the Children Act 1989 (which includes factors such as the wishes and feelings of the child, the child's physical, emotional and educational needs and the child's age, sex, background and any characteristics of his, which the court considers relevant). The Court will make an SGO if they find that it is in the best interests of the child to do so.

If an SGO is made, the Court will also consider whether there should be any changes to any existing Child Arrangements Orders relating to the child.

Obtaining Advice

Where there are care proceedings in respect of the child, the Local Authority may require you to obtain independent legal advice. The Local Authority can sometimes help fund obtaining that advice and, if they are able to do so, you should instruct a solicitor that deals with public children work to assist. However, where no funding is available, there are no care proceedings ongoing, or where you are considering making an application to become a child’s Special Guardian yourself, it remains important to obtain legal advice.

At Hughes Paddison, we can assist in providing you with detailed advice in respect of the SGO process, in making the application on your behalf and in advising you throughout the Court process.

If you require assistance in relation to obtaining a Special Guardianship Order, please feel free to contact a member of our Family Law Department on 01242 574244 and we will be happy to meet you and discuss your situation.