A Special Guardianship Order is one which says that a child will live with someone who is not their parent on a long term basis and gives overriding Parental Responsibility to that person so that they can make day to day decisions for a child without consulting parents who may retain their Parental Responsibility.
A Special Guardianship Order will usually last until the child is 18 years old but a Special Guardian cannot change a child’s surname or take them outside of the United Kingdom for a period of more than 3 months without the agreement of everyone with Parental Responsibility or the permission of the Court. Similarly a Special Guardian cannot give consent for a child to be adopted although they may appoint a Testamentary Guardian to look after a child if they were to die before the child reaches 18.
The person applying for a Special Guardianship Order must first tell Children’s Services of the Local Authority in writing that they want to apply for a Special Guardianship Order 3 months before they can apply to the Court. Once Children’s Services receive that notification they must investigate the case and prepare a report for the Court indicating whether or not they consider that the applicant is suitable to be a Special Guardian.
Once the case is before the Court, a Special Guardianship Order can still be made if the Court considers it is necessary and proportionate even if the Children’s Services report does not recommend a Special Guardianship Order being made.
The Court will only make a Special Guardianship Order if it considers it is in a child’s best interests and the Court must look at a list of factors known as the “Welfare Checklist” in reaching its conclusion (the child’s wishes and feelings; the child’s physical, emotional and educational needs; the likely effect on any changes of circumstances of the child; the child’s age, sex, background; and any other characteristics which the Court considers relevant: any harm which the child has suffered or is at risk of suffering; how capable each of the parents or any other significant person in the child’s life are of meeting the child’s needs; the other powers available to the Court to make legal arrangements for the child, for example the power to make a Child Arrangements Order( saying who the child should live with). The Court must also avoid unnecessary delay and should not make an Order unless it will positively benefit the child.
The possibility of providing support to enable the child to remain living with a parent must also be considered fully by the Court prior to the Court endorsing permanent separation of a child from a parent.
Consequently, Special Guardianship Orders are less permanent that Adoption Orders in that the legal family relationship between a parent and a child continues following a Special Guardianship Order whereas it ends if an Adoption Order is made.
If a Special Guardianship Order is made then a parent (or other person with parental responsibility prior to the Special Guardianship Order being made) cannot apply to revoke the Special Guardianship Order unless they obtain permission from the Court first. The Court will only give permission if it is satisfied that there has been a “significant change of circumstances” since the Special Guardianship Order was made and after it has considered the welfare of the child and the chances of a parent being successful in an application to end an Order.
The Court may also change or end a Special Guardianship Order in other family law proceedings about the child if it is in the child’s best interests even if no-one has applied to end the Order.