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Should the Special Guardianship Order be Reformed?

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Background of the Special Guardianship Order (SGO):

The purpose of an SGO is to give one or more individuals parental responsibility (PR) and to exercise this ‘to the exclusion of all others’.  A Special Guardian can exercise their PR for all aspects of the child’s daily care and make decisions regarding their upbringing.  Special Guardians can be family members, such as grandparents, aunts, uncles and siblings of either the parent or the subject child or they can be non-family members who have cared for the child such as foster carers. An SGO allows for the legal relationship between the parents and their child to remain in place as the making of an SGO does not extinguish the birth parents’ PR. The Special Guardianship Order remains in place until the child reaches 18 years old. The Court must also consider the child’s wishes and feelings and the ‘welfare checklist’ as set out in the Children Act 1989.

There are a range of support services offered to Special Guardians to assist them. These services include where appropriate, housing, benefits, therapeutic services which the child may require and financial support depending upon the child’s needs.

It was a clear focus within the policy framework for an SGO for there to be a strong link between the potential carer and the child, who may already be residing with the carer for at least 12 months and the child should very familiar with the carer. However, the use of SGO’s is on the increase and research has identified that SGO’s are being made late or at the end of cases subject ton to care proceedings. 

Unfortunately, the findings have highlighted that the child does not always necessarily have a pre-existing relationship with the carer.  This has raised questions regarding the lack of evidence made available to the Court to ensure that the SGO is in the best long-term interests of the child.

There are now over 21,000 children residing with extending family members under an SGO where public law proceedings have concluded.  SGO’s have become a significant permanence option for children who have been subject to care proceedings. There has also been a rise in the use of SGO’s in respect of very young children and a decline in the use of placement and adoption orders (Harwin et al.,2019)

At Emery Johnson Astills Solicitors, we have a dedicated family and care team. If you have any further questions and require legal advice, please contact the office on 0116 255 4855 (Leicester) or 01509 610 312 (Loughborough).

Reason for Reform:

The case of Re P-S (Children) [2018] EWCA Civ 1407 prompted a review into the use of Special Guardianship Orders.  The specific issues that were raised in the case were as follows:

  • Whether it was lawful for the Court to make a Care order to allow the Local Authority to resolve the outstanding issues in relation to the proposed carers who were the children’s paternal grandparents so that a Special Guardianship Order could be considered. The Court of Appeal’s (CA) response was that it was not unlawful to use a care order as an interim order.
  • The Court at first instance had used informal guidance for its decision making. The CA advised that informal guidance is not the same as authoritative guidance or practice directions.
  • The CA also identified that the Special Guardians in the proceedings did not have effective access to legal representative and advice. Therefore, procedural fairness was not in the ‘children’s best interest’.

It should also be noted that the Association of Lawyers for Children were made intervenors in the appeal case. They raised further questions about SGO’s in the context of care proceedings. The Judgement also identified that there should be some authoritative guidance available to the Courts to resolve matters.

In July 2018, the President of the Family Division called on the Family Justice Council to draft some ‘authoritative guidance’ in response to the points raised by the Court of Appeal in Re P-S.

For Further consideration, visit the following website:

https://www.familylawweek.co.uk/site.aspx?i=ed190497

Findings from Research:

  • Kinship care is not treated with the same level of skills and knowledge as foster care placements or adoptions, but it is recognised as equally demanding given that most of the children come from similar and difficult backgrounds.

     

  • It was found that the preparation for Special Guardians was almost non – existent and ad hoc. There is no requirement to ensure that preparation or training is available compared to adoption and fostering placement.

     

  • The findings highlighted widespread dissatisfaction and frustration with the assessment process.

     

  • There is confliction between the duty to complete care proceedings with the 26-week limit when potential kinship carers are identified late in the proceedings. Professionals were compromised by the quality of their assessments due to the pressure. The quality was also compared to assessments carried out for foster placement and adoption.

     

  • The focus group were unanimous in their view that the 26-week timescale significantly impacted on giving full and proper consideration to the suitability of family members.

     

  • There was insufficient consideration given to the proposed Special Guardians’ in terms of their existing relationship, experience, knowledge and the consequence of how this may impact on the child.

     

  • Special Guardians are not given party status, and this impacted on their ability to make an informed and important long-term decision. Which can leave them ill prepared for their role in the future.

     

  • The impact of abuse and neglect to children in terms of their development is clearly identified in adoption and foster care. It is agreed that children who are made subject to an SGO have also been subject to the same issues. Therefore, their Special Guardians are also likely to require support in managing the consequences of abuse and neglect.  The research identified that support plans for SGO’s were lacking in robust evidence and detail. The consequence of this is that the placement is at risk of breakdown if a full assessment is not carried out. It was also found there was a lack of eligibility and support over finances and housing compared to foster care and adoption placements.  The group also found that there was a lack of compliance with the Special Guardianship Support Regulations 2005.

     

  • In terms of the process of becoming a Special Guardian, the research highlighted that many found it stressful and confusing. Some felt that they were not well prepared for the role and they had limited information about the child. With regards to contact arrangements for the parents, some Special Guardians felt that it was conflictual and problematic. However, if a Supervision Order was made alongside the SGO, it was found helpful in managing difficult relationships.

Conclusion:

The research demonstrated that there was significant benefit to placing children with extended family members under an SGO. However, the evidence also suggests that carers must make major adjustments, therefore it is important that effective support and services are provided to carers from the outset. These include; finance, housing, parenting support, support with the child’s health, including mental health and education. Carers should have support through the Adoption Support fund specialist therapeutic support for children and support for carers experiencing ‘carer strain’ and the consequences of this.

The Family Justice Council’s plan of action for better outcomes advised that there should be a joined-up approach to include; Courts, the Department of Education, CAFCASS, Ministry of Justice, the Adoption and Special Guardianship Leadership Board and the Family Justice Board.

For further consideration, visit the following website:

https://www.nuffieldfjo.org.uk/files/documents/Nuffield%20FJO_Special%20guardianship_English%20research%20studies_final.pdf

At Emery Johnson Astills Solicitors, we have a dedicated family and care team. If you have any further questions and require legal advice, please contact the office on 0116 255 4855 (Leicester) or 01509 610 312 (Loughborough).