Special Guardianship Orders

In December 2000, the government set out a new alternative approach to adoption in ‘A White Paper’, as Tony Blair argued that ‘children in an already vulnerable situation are being let down’ by the care system. The government set out a way to modernise adoption as Blair believed there was a clear ‘problem with the way the system of adoption operates’, and that more children should be in ‘permanent families’.⁴ Blair argued that society has a responsibility ‘to provide children with stability and permanence in their lives’. At the time the proposal was published, 70% of those who left care had no qualifications, and 58,000 children were being looked after by councils in England.⁶ The overwhelming negative effects of which ‘care leavers often have much poorer outcomes in adult live than their peers’, meant that the government sought out an alternative approach, namely Special Guardianship Orders (SGOs). The aim of its introduction was to provide stability and permanence to children who had the option of being taken in by their grandparents or relatives. Cafcass sources utilised by Lancaster University, demonstrate that ‘the number and proportion of special guardianship orders rose steadily’ since it was introduced in 2002, and that ‘placement orders have overtaken adoption as the more frequent permanency option’. As Thomas highlights ‘the rising numbers and rates of children in care’, and those in ‘emergency protection orders, is a major current concern’. The benefits of keeping a child within their birth family is colossal, as studies demonstrate ‘that those in kinship care have fewer behavioural and emotional problems’, and are more likely to ‘say they felt loved’. It also means that children who cannot live with their birth parents are able to ‘preserve the link between the child and their birth family’, and ‘provide a firm foundation on which to build a lifelong permanent relationship’. As Munira Wilson asserts in a parliamentary debate in 2022, ‘kinship care is the Cinderella service of our children’s social care system’.

In addition, under Section 14F 5 of the Children Act 1989 (CA 1989), the local authority must provide support services for special guardians, such as ‘counselling, advice and information’, and ‘financial support.’ They ‘must prepare a plan’ which details the support services and financial support they should be receiving. However, 70% of carers feel they are ‘not supported by the local authority’, and research has demonstrated that ‘psychological distress among custodial grandmothers results in lower quality parenting’, which ultimately leads to ‘higher maladjustment of custodial grandchildren’. Despite the current requirement of support services imbedded into the CA 1989, the local authority is disregarding the law and failing to view special guardians as just as valuable and worthy of support as foster carers.

Therefore, this chapter will argue that the value of special guardians is being undermined. It will contend that the law should intervene to make sure that guardians are receiving the right support, and the same rights as foster parents. This chapter will discuss the lack of financial support afforded to carers, the rights for special guardians to receive the same amount of parental leave as those who are adopted, and proper rules and regulations/definitions which have clear and firm guidelines for how certain matters are to be carried out (such as contact handovers and relationships with birth parents). The lack of support is putting vulnerable children at risk by threatening the new modernised family unit as a whole. As Baroness Barran asserts, these children are in a ‘crisis situation’. It is imperative that those who step forward to help as ‘kinship carers, who are left to navigate the justice system alone, get the legal support they need’.

Financial Support

In the Special Guardianship Regulations 2005 (SGR 2005), it asserts that in order to determine the financial support payable to a special guardian, the local authority ‘should have regard to the amount of fostering allowance’ that would have been ‘payable if the child were fostered’. Despite this, the local authority in the case of R (TT) v London Borough of Merton, argued that ‘children who are the subject of Special Guardianship Orders are not looked after children’. The local authority’s belief is that they should ‘adjust the figures given by the Fostering Network’ and take 2/3 of ‘this as the figure which will be required to look after a child of that age’. Mr Justice Edwards-Stuart quashed this belief rendering it ‘unlawful’, asserting that the local authority is required to have ‘proper regard for the amount of fostering allowance which would have been payable’ if C was fostered. Further, the claimant had given up her career as a civil servant to take on the role and had ended up in considerable amounts of debt. No consideration was taken by the local authority to understand the guardian’s personal financial situation. From the local authority’s perspective, foster children suffer more behavioural issues than those undertaken in a special guardianship.

However, as the Department of Education’s publication asserts, ‘the most common reasons for family members taking on the care of children’ are related to issues such as ‘domestic violence, alcohol or substance misuse, mental or physical illness etc’. Therefore, the characteristics and ‘needs of children living with carers in informal arrangements’ are considerably ‘similar to those of children who have become looked after’. The court therefore backdated the payment to C. However, other special guardians are not so lucky and cannot always take these issues to court. As Sir James Munby highlights, ‘the problem is that special guardianships are not regulated by rules or procedures’ as it originates from a ‘rather specialist private law’. Adoption is easily defined and procedurally set out in legislation, whereas ‘kinship as a concept and as the same legal definition does not have the same legal guidance’ and tends to be ‘overlooked’.

Further, despite the family courts rendering it ‘unlawful’ to not grant special guardians with the same amount of allowance as foster carers, it has continued to happen. This is due to the Special Guardianship Guidance published in 2017, which is meant to be statutory guidance for local authorities with regards to the SGR 2005. In paragraph 65, it does not require a local authority to consider special guardians to have the same fostering allowance, rather it only requires the local authority to ‘have regard to those allowances’. This has meant that each local authority is able to distribute allowances in whatever way they see fit, which has meant large groups of special guardians are being underpaid and thus having to take it further to the Ombudsman, and then court.

Further, in 2002 in the case of L and Others v Manchester City Council⁷ the High Court decided that it was ‘wrong to pay kinship foster carers less than other foster carers’. In Barrett v Kirklees Metropolitan Borough Council, the grandmother was looking after her grandson who bad extreme behavioural issues due to emotional abuse by his birthparent. The grandmother had no reviews of her financial support by the local authority, and took it to court to challenge the 2/3 rate of fostering allowance. The judge in this decision held again that it was unlawful, and that it substantially departures from the relevant guidance. After so many cases and instances of this situation occurring, why is legislation not being put in place to prevent the special guardians from having to take it further. The Local Government Ombudsman went on to publish his report from the case of R v Manchester City Council, as it raises ‘issues of public interest’. White considered it ‘inequitable’ that special guardians are not paid the full allowance. White recommended to the court that the council should ‘pay Mr Carter the full foster care allowance and additional payments from the date’ the approval process began.  Surely, where 95% of the 180,000 children being looked after by family or friends in England do not have ‘any entitlement to any statutory support’, legislation should be put into place to ensure the local authority does not take advantage of their right to delegate the allowances. In 2018, ‘322 special guardians raised formal complaints’ about the local authority’s treatment towards them. The ombudsman ‘upheld 70% of these grievances’ and found social workers to be giving ‘poor advice’. Even in cases where financial support was offered, ‘some councils had calculated it wrongly’ and ‘arbitrarily cut the allowance’.

As Louise Tickle asserts, the ‘ethics of this situation stink’, whereby special guardians agree to the placement in good faith despite the ‘immense financial and emotional toll’ it takes, and in return they are being exploited by the local authority. The ombudsman Michael King argued that ‘it is imperative’ that special guardians should not have to fight ‘the system to get what they are entitled to’. The situation of domestic crisis that they are put in, has meant they have had to change their lives completely to parent a relative. This should demonstrate that they do not need extra added stress in the form of a lack of support. Further, the chief executive of the Family Rights Group argued that the ‘local authorities ride roughshod…taking advantage of the carers good nature’. Grandparents intervene in the absolute climate of crisis, and often ‘feel a sense of emotional pressure to take on the role’. We should therefore support those who take on such a difficult role and recognise the long-term financial savings in keeping children within their family home. Not to mention that special guardians are more ‘likely to preserve for longer when under strain than unrelated foster carers’ are. It is shocking to think that special guardians aid the local authority and their relatives in situations of crisis by taking the children in, and the local authority and the government does not support them. The absence of support is so extensive to the point that ‘44% of kinship carers could not pay all their household bills’, and more than ‘a quarter could not afford food for their families’. Considering that a child being placed with grandparents ‘avoids the child going into care’, special guardians are already saving the local authority a considerable amount of money. Munira Wilson in a parliamentary debate, noted that at the moment it costs about ‘£72,5000’ a year to put a child into the local authority’s care. Wilson argues ‘if we provided every child in kinship care with a social worker, and a weekly allowance’, it would cost the taxpayer just over half of what it would cost for a foster carer. As Baroness Barron asserts ‘kinship care is a cost- effective way forward’.

Contact Arrangements

One of the benefits of an SGO over adoption, is that it grants the child to remain in contact with their birth parents ‘as long as it is in their best interests’. The benefits to the child having ‘birth family contact’, is that is ‘maintains and renews family attachments’, ‘develops their identities’ and keeps their ‘cultural connections’ intact. Equally, for birth parents it gives them the reassurance of a ‘permanency alternative’ to adoption which means they can have ‘continued contact with their children’. Research equally demonstrates that ‘contact with birth parents is important to develop their sense of identity and sense of self’. Lack of contact can result in ‘loss of knowledge and understanding of their family history’, as well as being damaging to a ’child’s ability to make new relationships’. However notably, studies have shown that ‘the quality and regularity of contact were the most crucial factors in determining its success’.  Many special guardians have noted that there are many ‘complexities of manging contact within difficult family dynamics’. As Goodman notes, there is a repeated pattern whereby ‘the parent is in conflict with the grandparent or other family members’. They may ‘also project past difficulties onto the grandchild, sabotage the caregiving arrangement’, and lastly verbally express ‘fantasies about reunification’.  Being equipped to deal with the conflict in such a personal climate can prove difficult for many, more support should be available to provide special guardians with a coping strategy. Further, many carers noted the lack of ‘adequate understanding about contact’ at the time they were granted the SGO. Special guardians noted that ‘the current system leaves a lot of ambiguity’ around how best to adhere to the ‘contact plan and when they should decide on contact’.

Moreover, one guardian noted that ‘her contact agreement mentioned increased contact for the parent’ if they behaved well, but no mention of decreased contact ‘if they behaved badly’. Where parents are unreliable and show up in bad mental states, the knock-on effect for the child can be immense. One guardian noted that after a child sees her mother, ‘it takes a whole month for her to settle down’, as when contact is poor and unreliable it causes feelings of disappointment and anger from the child. As Thompson notes, there is a consensus among special guardians that ‘parents should attend contact reliably and behave appropriately or face the consequences’. They believed that recommendations about contact should be ‘accompanied by details’ of the parents ‘corresponding responsibilities’. In making detailed recommendations it can increase the child’s well-being, and reduce the amount of stress placed on the special guardian, who already has to deal with emotional and behavioural problems from the child. As research in kinship care demonstrates, ‘parental behaviour which causes conflict with carers is seen as the most problematic issue’. Where contact has been unreliable or stressful, the carers reported that the children post-contact were having a variety of issues. These included ‘bed-wetting, waking crying in the night, aggression, anxiety and naughty behaviour’. By not having detailed guidance for unreliable contact, it places the children and grandparents at further risk. The recommendations should consist of the ‘standard of behaviour’ that should be demonstrated, and ‘details of consequences for improper behaviour, such as reduced contact’. As Thompson suggests, ‘a written contact agreement that clearly lays out the rights of the parents, their responsibilities and behaviour’ would help provide stability for the child,⁸⁴ help reduce stress for the grandparent, and empower the parents to still feel that they have a continuing importance in the child’s life.

Further Reforms

The Family Rights Group who are campaigning for legislation which incorporates kinship carers as equal, have advocated for kinship care to be defined singularly in the law, to ensure that ‘no kinship carer is left out’. This is due to the varying definitions of kinship care, whereby those who are kinship foster carers do not hold parental responsibility, neither do those in informal arrangements. It is only in Special Guardianship Orders and Child Arrangement Orders (formerly residence orders), that the kinship carer holds parental responsibility. Positively, there is currently a ‘Kinship Carer Bill’ in parliament which is in the second stage of the bill passage. The bill calls for a ‘statutory definition of kinship care’, to make ‘provision about allowances and parental leave for kinship carers’, and to make ‘provision about education in relation to children who are looked after by a kinship carer’. At the moment, statutory adoption leave lasts up to 52 weeks which is the equivalent of maternity leave, it is also paid for 39 weeks which is also the equivalent to maternity pay. However, as a special guardian you are only entitled to 18 weeks’ parental leave, as a maximum 4 weeks at the most for each child. Not to mention, this is only if you have been present in that particular job for one year. The bill proposes for the same amount of parental leave as proceedings for adoption, whereby the employee ‘is entitled to at least 52 weeks’.

Equally, where these children are most likely traumatised from parental drug use, emotional abuse, and domestic violence etc, they may present some behavioural and emotional difficulties. There is great value and importance in providing the right educational support for psychological issues in children who suffer from trauma. For example, if the child has a meltdown the grandparent may attempt to punish the child. However, without having the right education they may not know that this may ‘positively reinforce the behaviour’ and increase the height of the meltdown. The reactions ‘may also trigger a child or youth who is already overwhelmed’. Giving education to grandparents around how best to self-regulate can be greatly beneficial for the grandchildren, as it gives them life-long ways to deal and cope with their emotions.

Therefore, the law has a long way to go in providing protection and efficacy to special guardians and the children involved. As the kinship care bill exemplifies, parental leave is not the same for kinship carers as it is for adoption, financial support is equally inequitable between foster carers, and contact arrangements are ambiguous and unsupportive of conflict within families. Moving forward, if the kinship care bill manages to get Royal Assent and finally come into force, it will do much to afford special guardians the support and protection they rightfully deserve.

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Bibliography

Cases

Barrett v Kirklees Metropolitan Borough Council [2010] EWHC 467 (Admin)

R v Manchester City Council ex parte L and Others and ex parte R and Others [2002] 1 FLR 43

R (TT) v London Borough of Merton [2012] EWHC 2055 (Admin)

Legislation

Children Act 1989

Books

Crumbley J and Little R, Relatives Raising Children: An Overview of Kinship Care, (Child Welfare League of America 1997)

Journal Articles

Berrick D.J, ‘When Children Cannot Remain Home: Foster Family Care and Kinship Care’ 8 Protecting Children from Abuse and Neglect

Dolbin-MacNab M and Keiley M, ‘Navigating Interdependence: How Adolescents Raised Solely by Grandparents Experience their Family Relationships’ [2009] 58 National Council on Family Relations

Harris R and Lindsey C, ‘How Professionals Think about Contact between Children and their Birth Parents’ [2002] 7 Clinical Child Psychology and Psychiatry

Kiraly M and Humphreys C, ‘A Tangled Web: Parental Conflict with Children in Kinship Care’ [2013] 20 Child and Family Social Work

Neil E, Gitsels L, Thoburn J, ‘Children in Care: Where do Children Entering Care at Different Stages End up? An Analysis of Local Authority Administrative Data’ [2019] 106 Children and Youth Services Review

Saunders H and Selwyn J, ‘Supporting Informal Kinship Care’ [2008] 32 Adoption and Fostering

Thompson N, ‘The Views of Social Workers and Special Guardians on Planning Contact for Special Guardianship Children’ [2019] 14 Journal of Children’s Services

Woodward K, Melia Y, Combes H, ‘Exploring Carers’ Experiences and Perceptions of Special Guardianship Orders (SGOs) over Time, From the Point of Applying to Now’ [2020] 51 The British Journal of Social Work

Online Journal Articles

Butler P ‘Councils Underpaying Guardians and Not Offering Full Support’ The Guardian (May, 2018),

Child Welfare Information Gateway, ‘Parenting a Child Who Has Experienced Trauma’ (2014) Children’s Bureau Family Rights Group, ‘Time to Define Kinship Care’ (Family Rights Group) accessed 3 July 2023

Miller C, ‘How to Handle Tantrums and Meltdowns’ (2010) Child Mind Institute

Russell L, ‘5 Actions to Avoid When Your Child Has a Meltdown or Outburst’ (2023) They Are the Future

Tickle L, ‘Caring for a Child When Their Parents Can’t? The State Takes You for a Mug’ The Guardian (May 21 2018)

Websites

Coram, ‘Statistics on Special Guardianship’ (Coram BAAF, 2023)

Department for Education, ‘Special Guardianship: Statutory Guidance’ (UK Government, 2017) accessed 9 August 2023

Kinship, ‘Care Review: Focus on Kinship Care’ (Youtube, October 13 2021) accessed 4 August 2023

Reports

Secretary of State for Health, Adoption: A New Approach (White Paper, CM 5017) White J, ‘Report on an Investigation into Complaint No 06B0975 against Dudley

Metropolitan Borough Council’ (The Commission for Local Administration in England, 2008)

Parliamentary Bills

Kinship Care Bill (HL Bill 128-I(a)/ HC Bill 330) (HL) [2019-21]

Parliamentary Debates

HL Deb 7 November 2020, vol 844 col 12965