Special Guardianship is where you take on the responsibility of caring for your grandchild until they are 18 years of age. It gives you Parental Responsibility (PR) for your grandchild over and above that of the parents. In essence you have 51% PR and the parents retain 49%, however, as the child resides with you if the parents do not agree then you can overrule them.
A Special Guardianship Order is less severe than adoption as the child retains a link to their parents but more substantial than a Child Arrangement Order (previously known as Custody) as with a child arrangement order you share parental responsibility for the child with the parents.
Frequently Asked Questions
A Special Guardianship Order is usually most appropriate when the parents have significant problems of their own and are unlikely to agree with decisions about the upbringing of the child and that the child is unlikely to be returned to the care of its parents.
If a Special Guardianship Order is made by the Court, then in order for the parents to have the child returned they will need to show that significant changes have taken place in their lives since the Order was made before the Court will even consider changing the placement of the child.
The Local Authority can offer assistance both practical and financial under a Special Guardianship Order if they feel it is appropriate.
Any person can apply for a SGO as long as they are not the parent to the child. i.e:
- Any guardian of the child
- A local authority foster carer with whom the child has lived for one year immediately preceding the application
- Anyone who holds a residence order with respect to the child, or who has the consent of all those in whose favour a residence order is in force
- Anyone with whom the child has lived for three out of the last five years
- Where the child is in the care of a local authority, any person who has the consent of the local authority
- Anyone who has the consent of all those with parental responsibility for the child
- A relative with whom the child has resided with for over a year
- Any person, including the child, who has the leave of the court to apply
Whilst you have PR over and above that of the parents, you cannot:-
- Change the child’s name
- Remove them from the country for more than 3 months
- Agree for the child to be adopted
To obtain a Special Guardianship Order you will have to make an application to Court but before you do that you need to give your Local Authority notice of your intention to apply for a Special Guardianship Order. This notice needs to be given three months before you make any application to Court.
If your grandchild has not been living with you for over a year you will need to ask for the Courts permission to make your application. This is called a “leave” application. The Judge will consider whether there is any merit in you making the application. This will be the first hearing for your application. The forms that you will need to make your application are a C2 for leave, C1 and C13a for the Special Guardianship Order. All of these can be found on the government website.
If your grandchild has lived with you for over a year then you do not need the Court’s permission and you can make the application for the Special Guardianship Order. The forms you will need are a C1 and a C13a. Both of these can be found on the government website.
There will be a Court fee which is currently set at £170.
When making a Special Guardianship Order the Courts must be satisfied that it is the most appropriate order for the child. It may be that the Court feels a Residence or even adoption may be the more appropriate order.
The emphasis is on the rights of the child, not the parent’s rights. When determining an application, the courts primary consideration is the welfare of the child. This is known as the Welfare Principle. The court has to pay particular attention to several factors when it is applying the Welfare principle; these factors are as follows:
(i) The ascertainable wishes and feelings of the child concerned (considered in light of his age and understanding);
(ii) The child’s physical, emotional and educational needs;
(iii) The likely effect on the child of any change of circumstances;
(iv) The child’s age, sex, background and any characteristics of the child which the court considers relevant;
(v) Any harm that the child has suffered or is at risk of suffering;
(vi) How capable each of the child’s parents (and any other person in relation to whom the court considers the question relative), is of meeting the child’s needs;
(vii) The range of powers available to the court under the Children Act 1989 in the proceedings in question.
In addition there is a policy that the court will not intervene and make an order unless it can be shown that there is a positive need and benefit to the child in doing so. This is known as the no order principle.
It may be in your case that a Guardian is appointed to act on behalf of the children. The Guardian is an independent person, who has experience in child care protection and is employed by Cafcass. A solicitor takes his/her instructions from the Guardian, who acts in the children’s best interest. Consequently, due to the impartial position of the Guardian the court listens carefully to recommendations that the Guardian makes and you should be aware that the court carries great weight to the Guardian’s recommendations.
A Special Guardianship report is a document completed by the Local Authority. It will inform the Court all about the child, the parents and the grandparents making the application. It will inform the Court as to whether they agree with the Special Guardianship Order being made or not.
It should also be accompanied by a Special Guardianship support plan which will set out what support the Local Authority think you need in order to care for your grandchild. This support can include emotional support and help with contact between the child and its parents and also financial support by way of a Special Guardianship Allowance.
A Special Guardianship allowance is a weekly allowance paid to you by the Local Authority. It should be in line with the Local Authority’s foster payments, minus child benefit. Unfortunately it is means tested and the Local Authority has discretion as to whether to pay it to you or not. Each Local Authority has their own policy as to whether an allowance will be paid or not. If the Local Authority chooses to pay you the allowance then it will be reviewed at least every two years.
Contact will be at your discretion unless the Court has made a specific order setting out what contact should take place with the parents/siblings. If no order has been made by the Court, contact arrangements will be left to you and the parents. In the Special Guardianship report he Local Authority could make recommendations about contact. If this is the case then it is advisable that you to stick with these recommendations in the first year or so. If you feel that they are not workable then you are at liberty to change them.
Unfortunately as of the 1st April 2013, Legal Aid is very rarely available for Special Guardianship applications.
If the child has been placed in your care by the Local Authority then there is the possibility that the Local Authority will agree to pay your legal fees. This is something which should be discussed with the Social Worker, if one is allocated, before making your application.
If you feel that you require a solicitor to advise you on the law or the process then they will be able to give you an idea of costs when you speak to them. It may be that you can come to an agreement to pay in monthly instalments instead of one lump sum.
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