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In family proceedings, the court sees children as the utmost priority. In instances where a child faces safety or well-being concerns, the court may consider approving a special guardianship order.
But what is a special guardianship order? And what does it mean in reality? This article outlines everything you need to know.
For more information on special guardianship orders, please visit our family law page, or call our solicitors directly on 020 3007 5500.
What is a special guardianship order?
A special guardianship order appoints one or more individuals to be a child’s ‘special guardian’ (not biological parents). The order is put in place by the court during family proceedings. The court validates the order when it’s agreed that the children cannot live with their birth parents and will benefit from a legally secure placement.
Furthermore, the special guardian/s is given parental responsibility. Parental responsibility can be described as a “super-parental responsibility” because the special guardian can exercise parental responsibility without input from any other person. Therefore, a special guardian can make decisions for the children, such as which school they attend and what activities they will participate in.
The birth parents are still legally the child’s parents, but their parental responsibility is limited.
Restrictions
Although special guardians have enhanced parental rights, meaning they make decisions over raising the child, there are some restrictions in place.
Special guardians do have restrictions from doing the following unless they have permission from anyone with parental responsibility or an order from the court:
- Change a child’s name.
- Take the child out of the jurisdiction (England and Wales) for a period exceeding three months.
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Why would you apply for a special guardianship order?
Someone would apply for a special guardianship order when they’re concerned about a child’s safety and/or well-being. You can apply for an order from the court if you feel that a child is suffering from any of the following:
- Neglect
- Abuse
- Family dysfunction
- Child or parent’s illness or disability
- Family in acute stress
- Absent parenting
Who can apply?
To apply for a special guardianship order, you must first ensure you’re over the age of 18, not a biological parent of the child, and you make the application jointly or with another person.
The following people may apply to be a special guardian.
- Any guardian of the child under section 14A(5)(a) of the Children Act 1989.
- You have a Child Arrangements Order or a Residence Order for the child.
- Anyone with whom the child has lived for at least three years out of the last five years.
- Anyone with the consent of the local authority if the child is in care.
- A local authority foster parent with whom the child has lived for at least one year preceding the application.
- You are a relative of the child, and the child has resided with you for at least one year immediately pre-dating an application for a Special Guardianship Order.
- Anyone who has the consent of those with parental responsibility.
- Anyone who has the permission of the court to make the application.
Suppose you do not fall into one of the categories above. In that case, you require leave (permission) of the court to make an application for special guardianship.
Furthermore, if the person seeking special guardianship is a child, in that case, the court will only grant the application if the judge is satisfied. For the judge to be satisfied, the child must understand the consequences and responsibilities of being a special guardian.
How do you apply for a special guardianship order?
Firstly, you must give the local authority at least three months’ notice of your intention to apply for a special guardianship order. The relevant local authority will either be where the child lives or the local authority who placed the child in care (if applicable).
Suppose you fall into the category where you need to seek the court’s permission to make an application for special guardianship. In that case, you must obtain that court order before you notice your intention to complete the application for a special guardianship order.
If you do not require the permission of the court, then you will need to complete the following:
- Form C1 (four form C2 if there are care proceedings).
- C13A form.
- Form FM1.
- A statement in support of your application dealing with:
- You and your relationship to the child.
- Your experience of caring for children and the child if relevant.
- An explanation as to why the child cannot be cared for by his parents.
- Evidence that you have notified the local authority.
- Your long-term plans for the child’s care, including contact with the child’s parents.
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What will the court consider for a special guardianship order?
Special guardianship was introduced within family Court proceedings to bridge the gap between adoption and child arrangement orders. Adoption is considered one extreme, and child arrangement orders result from disputes concerning contact with children of the family.
The family Court considers the security of children a priority above all other factors. At the heart of this, the court wants to provide children with a home without cutting their birth parents’ link.
The court must consider welfare cheques as set out in section 1 (three) of the children act 1989, which are:
- The feelings and wishes of the child while considering the age and understanding of the child.
- Educational needs.
- Emotional needs.
- Physical requirements of the child.
- The effect of any change in circumstances on the child
- The child’s characteristics that the court deems relevant and the child’s age, sex and background.
- Any risk of suffering to the child or harm the child has suffered.
- How capable the parents of meeting the child’s needs.
In recent years, foster parents have been encouraged to become special guardians to reinforce the children’s sense of belonging to a family.
Why would you apply for a special guardianship order?
Under the special guardianship regulations 2005, information about a prospective special Guardian includes their history and current situation. As part of this information, the local authority will look at criminal behaviour, and any criminal history noted on the national police computer.
The national police computer will evidence any criminal convictions or criminal investigations into any prospective special guardian. Local authorities will usually request the enhanced disclosure and barring service check against the special guardian. Furthermore, The Family Justice Council will consider enhanced disclosure barring service checks on any of the Special Guardian household members over the age of 16.
Remember...
The court timetable will usually allow time for the undertaking of the disclosure barring service checks, which can take up to 60 days to be processed.
How do you end a special guardianship order?
Depending on the order itself, a special guardianship order will last until the child reaches the age of 18 unless the court discharges the order before that date.
Although the order is usually valid until the child reaches the age of 18, in some situations where there has been a significant change in circumstances, the court can make exceptions.
In these circumstances, the court can change the order in one of the following two ways:
- Alterations of the terms of the order.
- Complete removal of the order, and the returning of the child to their biological parents.
Anyone wishing to end a Special Guardianship Order must apply to the court. The court will then examine the evidence to determine if the change in circumstances is significant enough to vary the original order. The court will also consider the likely impact of their decision on the child and how disruptive another change in living arrangements would be.
How contact a family law solicitor?
Special guardianships are an important and highly complex area of law. Therefore, if you’re looking to make a special guardianship application, ensure you instruct a solicitor to draft, review and/or provide legal advice on your application.
Using a solicitor who specialises in family law, will give you that peace of mind that you have the highest chance of successfully achieving your special guardianship order. For any more questions, please visit our family law page or contact our solicitors directly at 020 3007 5500.
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