Legal Update: Special Guardianship Orders

Last year, 3,690 children were placed under a Special Guardianship Order (SGO), almost twice the number placed in 2011. An SGO is often used to confirm a child's placement with a family and friends carer. Where a special guardianship arrangement is proposed because the child's birth parents are not able to care for the child, the legal connection to the birth parent is not severed. However, the child is able to benefit from stability and permanence, and the special guardian is able to exercise parental responsibility for the child.

Nonetheless, the use of SGOs is not without problems. In its 2015 consultation on special guardianship, the Department for Education noted the lack of adequate support services for special guardians, including information and advice. It also highlighted that "for a special guardianship to be successful, both the child or children and the guardian(s) may need support". Three years later, a report from the Local Government and Social Care Ombudsman called Firm Foundations, has found that the number of complaints about SGOs is increasing, and some significant mistakes are being made repeatedly in this area.

Special guardianship

Introduced by the Adoption and Children Act 2002, an SGO is a private family law order made by the Family Court that places a child or young person to live with someone other than their parent(s) on a long-term basis. Described in Firm Foundations as "a halfway house between foster care and adoption arrangements", the effect of a Special Guardianship Order is to:

• Secure the child's or young person's long-term placement;
• Grant "parental responsibility" to the special guardian(s);
• Maintain links with the child or young person's birth parent(s); and
• Enable the special guardian to have day-to-day control to exercise parental responsibility.

Local authority support

Local authorities should meet the needs of special guardians in their area through offering financial support, counselling, advice, and information and assistance to meet a child's special needs. They must help children and families access mainstream support services and explain any extra assistance they might be entitled to. Government guidance makes clear that special guardianship arrangements should not fail simply because of financial problems. Where there is a financial obstacle, financial support should be provided to the special guardian to help secure a suitable arrangement.

However, despite this existing guidance on special guardianship, the ombudsman has investigated a number of complaints where local authorities have provided incorrect advice, or not followed up verbal advice with written information about the consequences of becoming a special guardian. They have found evidence of confusion caused by councils not sharing final versions of support plans, or failing to carry out regular reviews. In some cases, carers were left unclear about what support they will get, and for how long after becoming special guardians. The ombudsman also found examples of councils failing to set out clear guidance on how they calculate financial support and failures to pay special guardianship allowances at the same rate as fostering allowance, as required by law.

Improving practice

Firm Foundations has identified key questions that local authorities can ask themselves as part of a process of improving practice:

• How does the council calculate special guardianship allowances? Is this in accordance with statutory guidance?
• Are decisions about support to special guardians being made based on the child's needs as opposed to blanket financial constraints?
• What advice do prospective special guardians get before having to make key decisions about what to do?

The report's authors make clear their hope that the examples they give "will enable all councils to review their practice and make sure [special guardians] get the firmest of foundations in their valuable role".

POINTS FOR PRACTICE

• Local authorities should develop clear, accurate and user-friendly information for potential guardians and frontline staff to minimise the risk of misunderstandings and mistakes.
• Advice to special guardians should be provided in writing, as well as in person, and information about financial support should be provided at the outset. They should understand what support is available, what conditions are attached to this and how the council will keep it under review.
• All councils should review their special guardianship allowance policies and should publish a clear, simple explanation for how they will calculate any allowance. This should set out what factors will be considered.

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