Successful applicants of a Special Guardianship Order benefit from parental responsibility over and above and to the exclusion of all others, including the birth parents.
It is stronger than a child arrangements order as the birth parents cannot apply for it to be discharged without the Court giving strict permission to do so. It does not however provide as much protection as an adoption order because the legal relationship between the child and the birth parents is not automatically ended.
A Special Guardian has the power to make all day to day decisions in relation to the child’s life and upbringing and can even ask leave of the Court when making the original application to change the child’s surname. A Special Guardian can also take the child abroad for up to 3 months without the permission of the other people with parental responsibility and without the need to apply for leave of the court. A Special Guardian can however also apply to Court for permission to take the child away for longer than 3 months.
The Court whilst making an Order for Special Guardianship may also consider making an order under Section 8 of the Children Act 1989 for contact with others, for example with the parents. It will also consider, if there are Section 8 Orders already in place, varying or discharging them.
Who is eligible to apply to a Special Guardianship Order?
- Anyone with whom the child has lived for at least 3 out of the last 5 years
- Anyone with a residence order
- Anyone who has the consent of the person who has a residence order
- The child’s guardian
- The local authority foster parent with whom the child has lived for at least 1 year prior to making the application
- Any person with the consent of the local authority if the child is in care
- Anyone who has leave of the Court
- Any person who has been given consent by those with parental responsibility
The local authority takes an active role in the application process, preparing a report for the Court based on any siblings the child might have, the current relationship the child has with family members including contact. The wishes of the child and the parents are considered, and the prospective arrangements are assessed. They look at medical information in relation to the parents, child and special guardian/s. In conclusion their report will set out the suitability of the special guardian/s taking into consideration especially their ability to meet the needs and best interests of the child. The report will also set out the support services that will be put in place should the order be made.
The support services will include providing assistance in facilitating contact with others, respite care, counselling and advice which will enable the child and the special guardians to talk about any issue or progress often in a support group environment. Financial assistance can also be available in certain circumstances.