Support for special guardians
Kamena Dorling
Monday, September 23, 2019
Kamena Dorling, head of policy and public affairs at Coram Children's Legal Centre, looks at calls for changes to special guardianship orders to ensure that carers are adequately prepared and supported.
Special guardianship is an increasingly common permanence option that often places children who cannot live with their birth parents in the care of a relative. More than 21,000 children have been placed with special guardians since 2010. Under a special guardianship order (SGO), the special guardian assumes all day-to-day parenting responsibilities for a child or young person but the legal link they have with their birth parents remains, unlike with adoption.
Recent research from the Nuffield Family Justice Observatory, led by Dr John Simmonds from CoramBAAF and Professor Judith Harwin from Lancaster University, shows that SGOs provide children with a safe, permanent home with family members.
However, the use of SGOs in situations where a child does not have a pre-existing relationship with the prospective guardians, and where such guardians identify themselves after care proceedings have begun, "has raised questions about the lack of time, resources and evidence for local authorities and the courts to ensure the order being made is clearly in the best long-term interests of the child".
Lack of training and support
While children under SGOs have experienced similar levels of abuse and neglect to those who are adopted or fostered, and may have significant emotional and behavioural difficulties, the research finds that SGOs are often made following "almost non-existent" groundwork with the new carer. Unlike with prospective adopters and foster carers, there is no regulatory requirement on councils to ensure training and preparation for a special guardian. When a person applies to become a special guardian through the private law system, the child must have lived with them for at least a year. But this does not apply in the circumstances in which SGOs are most frequently made - when family members nominate themselves to look after a child during care proceedings, which are meant to conclude within 26 weeks.
The context for the study was a prominent 2018 Court of Appeal judgment, "Re P-S", which examined a judge's decision to issue care orders rather than SGOs relating to two children, in part because they had not yet lived with their paternal grandparents. In this case, the president of the Family Division considered situations where the prospective special guardian is identified late in the day and if the child has never lived with, or has only a tenuous relationship with, the proposed special guardian. He reiterated that a judge would need to consider carefully what further steps need to be taken before the proposed SGO could be made and over what period to test the proposed placement. If the process "cannot be completed justly, fairly and in a manner compatible with the child's welfare within 26 weeks, then time must be extended".
Improving the system
Focus groups carried out as part of the new study raised a series of concerns, including a lack of consideration around prospective special guardians' existing relationship, experience and knowledge of the child; practical difficulties around making evidence-informed support plans when children have not lived with prospective carers before an SGO is made; and a lack of support for special guardians with housing and finance compared with foster carers or adoptive parents.
The Observatory's review recommended the strengthening and resourcing of the pre-proceedings phase of the Public Law Outline to identify and work with family members who might become long-term carers for the child. The use of Family Group Conferences was identified as a positive step towards identifying special guardians. It also recommended that prospective special guardians should complete preparation and training to an agreed statutory minimum. Provision must also be made for there to be legal orders that allow time for children and prospective special guardians to live together, before a full SGO is made.
It is also important to ensure that prospective special guardians receive full information about the meaning, significance and responsibilities of the relevant legal order in both the immediate and long term. A Family Rights Group survey of special guardians reported that three quarters felt that they did not have sufficient specialist legal advice to make an informed decision when they took on children, and the charity has called for early, independent legal advice so that potential kinship carers understand their legal options including the implications for support for the child.
The study is designed to feed into the current review of SGOs by the Family Justice Council, which is due to result in authoritative guidance to assist courts in making SGOs and respond to the Court of Appeal judgment in Re P-S. The full guidance is expected later this year.
POINTS FOR PRACTICE
- In May, the Family Justice Council published interim guidance, which sets out circumstances in which the 26-week deadline could be extended when prospective special guardians are identified during proceedings. Interim guidance on special guardians from: www.judiciary.uk
- The report reiterates that a support plan, based on a comprehensive evidence-based assessment of need, is required by the Special Guardianship Regulations 2005. Support services available locally must also comply with the Regulations, and must include alignment with entitlements that apply to adoption and/or foster care such as parental leave, housing priority and benefits.