Legal Update: Support for special guardians
Monday, April 27, 2015
Coram Children's Legal Centre's Child Law Advice Service (CLAS) is receiving an increasing number of queries about special guardianship. Kelly Reeve, team leader of CLAS, examines this trend.
A special guardianship order (SGO) is an order appointing one or more individuals to be a child's "special guardian", where the child cannot live with their parents. It is a private family law order introduced in 2002, and grants legal guardianship to a person over a child within their care until they reach the age of 18. Special guardianship is often used to formalise a kinship care arrangement which may already be in place, or as an alternative to a child moving to or remaining in a local authority foster placement. An SGO grants parental responsibility to the special guardian so that they can make key decisions about the child to the exclusion of other persons with parental responsibility, with a few exceptions.
Increased use of special guardianship
Anecdotal evidence from our Child Law Advice Service suggests that there is an increasing trend whereby children's services will place a child with relatives and family friends, characterising this as a "private arrangement", rather than placing the child in local authority foster care. The carers are then advised to seek an SGO, but are not supported to do so. Often, children's services will not provide further support, as they are satisfied that the child is now safe.
A typical situation is where grandparents are asked to care for a grandchild and are advised by children's services to seek independent legal advice on special guardianship and consider applying to the courts themselves for an SGO. While it is often preferable (where safe and suitable) for a child to be placed with a relative or family friend rather than a foster carer with no connection to the child, children's services are nonetheless obliged to provide support in this situation and carry out child protection enquiries. Unfortunately, too often these arrangements are put in place as an alternative to the local authority starting care proceedings, which could be considered a good thing; however, the difficulty is that the parents will not qualify for non-means, non-merits tested legal advice which they would be entitled to if care proceedings started or if the local authority sent a letter before proceedings.
Parents may agree to a relative caring for the child as a private fostering arrangement or under section 20 of the Children Act 1989 (whereby the child becomes looked after by the local authority). They may do so under immense stress and pressure from a local authority about what might happen if they do not agree to such arrangements. The parents may consider those arrangements as temporary and may not realise the impact of their decisions which is why it is important to have legal advice before entering into such arrangements.
In most circumstances, it is advisable for children's services to first carry out an assessment of the suitability of relatives as foster carers for the child. If a child is a looked-after child at any point, children's services are under an obligation to conduct this assessment. Children's services can provide financial and practical support during this process. It is then possible for a relative to apply for an SGO later, at least three months after notifying the local authority of their intention to be special guardians. The local authority is then obliged to assess the proposed special guardians and report to the court on their suitability.
Support for special guardians
In determining financial support for special guardians, government guidance and case law confirms that local authorities should have regard to fostering allowances and there should be a close link between financial support for special guardians and for foster carers. The amount is means tested. It is also important to note that birth parents remain financially liable for children in law throughout an SGO. The local authority is also required to consider whether it should fund the proposed special guardian's costs of legal advice and representation in connection with the application and proceedings for an SGO or to make a contribution to those costs.
- For further information on the process and the relevant forms consult our free legal factsheet on special guardianship available from www.childrenslegalcentre.com.
Legal Update is produced in association with experts at Coram Children’s Legal Centre ?www.childrenslegalcentre.com
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