A special guardian is an adult who has been appointed under a special guardianship order (SGO) to care for a child on a long-term basis. An SGO falls somewhere between a child arrangements order (which determines where a child lives) and an adoption order. It is intended to provide a child with a secure and permanent home without legally ending the relationship with their birth parents.
SGOs are commonly used where children are to live with, and be cared for, by wider family members, for example a grandparent. In these instances, family members will usually have decided between themselves who will care for the child, before the application is made. These orders are also used where some level of support is required from the local authority or where foster carers choose to care for a child on a long-term basis.
A special guardianship order confers parental responsibility on the special guardian. This gives the special guardian various rights and duties including:
The duty to care for a child
The right to have the child live with them
The responsibility and authority for choosing where a child can go to school or what medical treatment they should undergo.
However, a special guardian will not be able to change a child’s surname or remove a child from England & Wales for more than three months unless every person with parental responsibility, or the court, gives permission.
Significantly, the special guardian will be able to exercise their parental responsibility to the exclusion of everyone else with parental responsibility, except for another special guardian. This power is not granted to anyone else with PR and, as a result, a special guardian may take steps for the child’s benefit even if the parents disagree. However, a special guardian wouldbe recommended to consult a child’s parents on major issues (such as medical procedures) and a special guardian should be mindful of the fact that a parent could bring an application for a specific issue order (SIO) to challenge any of their decisions. An SIO is an order sought from the family court to determine a specific question in connection with an aspect of PR.
A special guardianship order will last until a child turns 18 years old or the court discharges it.
Any adult, save for the child’s parents, can apply to be a special guardian, and more than one person may be appointed. Some people will need the court’s permission to apply to become a special guardian, although this is not required where any of the following apply:
You are the child’s guardian
You are a relative with whom the child has lived for at least on year, immediately preceding your application
You have a child arrangement order (CAO) in respect of the child
The child has resided with you for at least three years of the last five years
The child is in local authority care, and the local authority consents to this
You are a local authority foster parent, with whom the child has lived with for at least one year immediately preceding your application
Everyone with parental responsibility consents
To apply for a special guardianship order, you must provide the local authority, in which the child lives, three months’ notice of your intention. If the court’s permission is required, this must be obtained before providing this notice. It is recommended that the actual application to the court is accompanied by a statement in support, detailing the potential special guardian’s relationship to the child, their caring experience and their plans for the future care of the child.
The local authority will provide a report dealing with the suitability of the person applying for the order and any other relevant factors. The report is likely to include:
Information about the child and their family, as well as about the potential special guardian
Details about the child’s health
Comments on the implications of making any order on all those involved
Information as to any harm which the child has suffered or may be at risk of suffering in future
Comments regarding the ability of the potential special guardian to protect the child from and risks of harm from others
A recommendation as to the special guardianship and additional contact with, for example, the child’s birth parents
In determining whether the order should be granted, the welfare of the child in question is paramount, and the court will consider a range of factors, including:
The child’s ‘wishes and feelings’ (the weight attached to these will depend on the child’s age and understanding)
The child’s physical, emotional educational needs
The potential consequences for the child of such a major change
Any harm that the child has suffered or at risk of suffering; and
How capable the child’s birth parents are at meeting the child’s needs themselves
In some circumstances, the court can order that the child be placed with the potential special guardian on an interim basis so that the relationship between them can be monitored before the more permanent special guardianship order is made. Any special guardianship order will be accompanied with an approved support plan drawn up by the local authority.
A special guardianship order may impact existing orders, and it is important that you obtain legal advice as to the full implications.
The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.