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3.9.1 Special Guardianship Orders

RELEVANT GUIDANCE

DfE, Special Guardianship Guidance (2017)

Adoption Support Fund

RELEVANT CHAPTER

This chapter should be read in conjunction with Special Guardianship Payment Review Procedure.

AMENDMENT

This chapter was amended in June 2017. The DfE has updated the Special Guardianship Guidance to include details of the Adoption Support Fund as the Fund now covers therapeutic support for children, living in England, who were previously in care immediately before the making of a Special Guardianship Order. See also Section 4.1, Special Guardianship Support for Families.

Additionally, two notes have been added to those who can apply, (see Section 3.1, Referral).


Contents

1. Legislative Context
2. Introduction and Background - Special Guardianship Order Process
3. Working with Children and Families Already Known to the Local Authority/Agency Applications
4. Issues of Support and On-going Contact
5. Entitlement to Leaving Care Services
6. Special Guardianship Records
7. Non-agency Special Guardianship Orders
Appendix 1: Notification of Intention to Apply for a Special Guardianship Order
Appendix 2: Schedule 21 Report for a Special Guardianship Order
Appendix 3: Assessment of Prospective Special Guardian's Needs for Support Services and Support Plan
Appendix 4: Information Pack for Financial Support Guidance for Social Workers


1. Legislative Context

  • Adoption and Children Act 2002 - Amendment to Children's Act 1989;
  • The Special Guardianship Regulations England 2005;
  • Special Guardianship (Amendment) Regulations 2016;
  • The Family Procedure Court Rules 1984;
  • The Children (Protection from Offenders) Amendment Regulations 1999;
  • Sexual Offences Act 2003;
  • The Children Leaving Care Act 2000.


2. Introduction and Background - Special Guardianship Order Process

2.1 Special Guardianship Orders (SGO) have been introduced to provide, 'an alternative legal status for children that offers greater security than long term fostering but without the absolute legal severance from the birth family that stems from an Adoption Order.' (Special Guardianship Guidance, DFES 2005 and The Special Guardianship (Amendment) Regulations 2016). It is a new legislative route to permanence for children for whom adoption is not appropriate. The special guardian will have Parental Responsibility for the child and may exercise this to the exclusion of all others with parental responsibility, apart from another special guardian. There are exceptions to the decisions a special guardian can make, for instance they cannot change the child's surname or take them out of the country for more than three months without the permission of the court or the agreement of all of the people with parental responsibility. The birth parents also retain the right to consent or not to consent to adoption.
2.2 The Special Guardianship process is subject to detailed regulations and these must be complied with. 
2.3

The Special Guardianship process addresses issues of:

  • Eligibility;
  • Contact;
  • Legal Issues;
  • Health Issues;
  • The assessment process;
  • Issues and support and contact;
  • Records;
  • Non-agency and agency applications.

The introduction of the Special Guardianship (Amendment) Regulations 2016 from 29th February 2016 requires an assessment of:

  • The current and likely future needs of the child (including any harm the child has suffered and any risk of future harm posed by the child’s parents, relatives or any other person the local authority considers relevant);
  • An assessment of the prospective Special Guardian's parenting capacity including:
    1. Their understanding of, and ability to meet the child’s current and likely future needs, particularly, any needs the child may have arising from harm that the child has suffered;
    2. Their understanding of, and ability to protect the child from any current or future risk of harm posed by the child’s parents, relatives or any other person the local authority consider relevant, particularly in relation to contact between any such person and the child;
    3. Their ability and suitability to bring up the child until the child reaches the age of eighteen;
    4. The proposed contact arrangements and the support needs (See Section 4, Issues of Support and On-going Contact) of the child, parents and the prospective special guardian.


3. Working with Children and Families Already Known to the Local Authority/Agency Applications

3.1

Referral

3.1.1 A formal referral for a Special Guardianship Order, for a child who is looked after by the local authority, can only be made following a statutory review at which special guardianship is recommended or at the request of the court during proceedings.
3.1.2

The initiative regarding an application for a SGO can come from a variety of sources, including:

  • Birth parents;
  • Foster carers [1];
  • The child;
  • The child's family;
  • Any other person (including the child and other than a parent) may apply for a Special Guardianship Order if he has obtained the leave of the court to make the application;
  • Children's Services;
  • The Court.
[1] A person who is, or was at any time within the last 6 months, a local authority foster parent of a child may not apply for leave to apply for an SGO unless (s)he has the consent of the local authority, or (s)he is a relative of the child or the child has lived with him for at least one year preceding the application.

3.1.3

Referral Following Review

Adoption Agency Regulations 2005 state that a plan for permanence must always be considered at the second review (four months from admission to care). The review must consider any action necessary to provide permanence for the child and the question of on-going contact with people who have parental responsibility for the child and significant others.

The prospective special guardian should write to the Head of Regulated Services (Appendix 1: Notification of Intention to Apply for a Special Guardianship Order) and should include the following information: their name and address, the name and date of birth of the child, the social worker's name and area office details, their fostering link worker's name. The letter should also include a statement to notify the department of their intention to apply for a SGO. The applicant must give written permission for statutory checks to be undertaken and should sign and date the letter. This "notification" will be formally acknowledged by the team. On receipt of the Notice, the information leaflet - "Your guide to Special Guardianship" published by DfE will be sent to the applicant.

Where the child is placed with a foster carer the completion of the court report (Schedule 21) will be undertaken jointly between a Supervising Social Worker and the social worker for the child. The Supervising Social Worker will ensure that any documents and case recording they undertake relating to the application are provided to the social worker for the child's case record.

3.1.4

Referral During Care Proceedings 

If a report is requested by the court during care proceedings, the Social Worker for the child should contact the Fostering Service by e-mail at kinshipreferrals@lincolnshire.gov.uk and should provide them with basic details of the child and the prospective special guardian as well as a viability and court schedule.

3.1.5

Referral from Local Authority Foster Carer - applying without the support of Local Authority 

This is dealt with as a non-agency application (see Section 7 - Non-agency Special Guardianship Orders).

3.2

Counselling

3.2.1 Any action/counselling undertaken must be fully recorded on the child's file.
3.2.2 Ideally counselling should commence prior to any application being lodged with the court and the applicant should be advised to seek legal advice where appropriate. The purpose of counselling is to ensure that, as with adoption the nature and implications of Special Guardianship are understood fully by the child, the Special Guardian and the birth parents and that their wishes and feelings are considered. Consideration should also be given to any financial support which may be required by the applicants.
3.2.3 The prospective special guardians should be made aware of the need to obtain the personal details of their family for inclusion in the Schedule 21 report for the court. The prospective special guardians should be seen at home both jointly and separately. The child should also be seen where possible and appropriate in the company of the applicants so that a view can be obtained regarding the family relationships. Any other residents of the home should be interviewed and appropriate counselling provided.
3.2.4 The child needs to know and have an understanding of his/her birth origins as well as to be aware of the implications of special guardianship. She/he should be seen alone if the child is old enough (e.g. over 5 years) and it is important to note that even young children can understand the difference between a 'parenting' parent and a 'birth' parent. It is essential that the child's views are recorded and taken into account. Where a child has strong bonds with the birth parents it is crucial that this matter is given careful consideration and contact issues addressed.
3.2.5 Counselling the birth parent or anyone who has parental responsibility for the child is essential. The Social Worker for the child is responsible for undertaking this. In addition the birth parent should be advised of the availability of independent support arrangements and how to access these. Any birth parent not agreeing to the application should be advised to engage a solicitor as soon as possible.

3.3

Contact

3.3.1 Issues of any on-going contact should be discussed fully with all parties and included in the support plan. Such arrangements may be made informally if all parties are in agreement. However there may be child protection concerns and consideration may need to be given to on-going supervisory arrangements. In the event of a dispute it may be necessary to consider the recommendation of a Section 8 order to run alongside the SGO. It would be important to address contact arrangements in assessing for SG support needs and seek legal advice if needed.

3.4

References

3.4.1 The Fostering Team are responsible for arranging statutory references including a Disclosure and Barring Service (DBS) check, health authority and local authority Child Protection section checks. The Supervising Social Worker will interview three personal references that the applicants have named. Two of these should be friends and not related to with applicant. The third reference should usually be a member of the extended family. The other requirements for referees laid out in the reference policy for adopters should be adhered to as a matter of good practice.

3.5

Health History and Summary

3.5.1

The Child 

The Social Worker should summarise the information from the last Health Needs Assessment to incorporate into the Schedule 21.

3.5.2

The Applicants 

Where the foster carer is known to the department the Supervising Social Worker should provide the medical advisor's summary of their most recent medical or provide an up dated medical where this is needed (where the medical is more than 2 years old). They will summarise this in Section 6 of the Schedule 21 Report. Where the applicants are not known to the department and the request for special guardianship has come during proceedings the applicant should follow the same process for obtaining a medical as for prospective adopters. Once a summary is received form the GP then a summary should be sent to the Supervising Social Worker for inclusion in the Schedule 21 Report.

3.6

Assessment and Recording

3.6.1

A record of the counselling must be noted fully on the case file. The outcome of the statutory checks must be recorded. An assessment must be made as to the suitability of the applicants to become a special guardian in order that a recommendation can be made to the court. There is no such thing as the 'ideal' or the 'typical' Special Guardian, situation or environment. Limiting factors may include the age of the applicant(s), health issues, accommodation and police record. However, each case will need to be considered on an individual basis.

3.7

Court Work and Preparation of Schedule 21

  (See Appendix 2: Schedule 21 Report for a Special Guardianship Order)

3.7.1

Lodging the Application 

After three months has elapsed since the notice of intention to apply for a Special Guardianship Order was received, the applicant can complete their application forms. These should be submitted in triplicate to the court. If the application is likely to be contested then they would need to instruct their own solicitor. In these cases the Social Worker should liaise with the solicitor regarding the timing and submission of the application forms and reports. In these cases it is likely that the solicitor will deal with the application forms. The department can agree to pay for these costs with the prior agreement of the Head of Regulated Services.

3.7.2 Where an application is lodged during proceedings the time limit for completion of the report will be set by the court. The time limit for completion of the reports in all other applications will be set at the first hearing of the application.

3.7.3

CAFCASS 

During proceedings the Children's Guardian will comment on the application and may see parties involved where appropriate. This person will be independent of the agency.

3.7.4

Attendance at Court 

The Supervising Social Worker if involved may be required to attend the court with the applicants.

3.8

Schedule 21 Report

3.8.1 The information required for a local authority report is the same for all Special Guardianship Order applications, whether there is an application made as a result of a recommendation at a Looked After Children review or whether the court has asked the local authority to prepare a report during proceedings. The Schedule is lengthy and the details required are prescriptive (see Appendix 2: Schedule 21 Report for a Special Guardianship Order).
3.8.2 Written information should be sent to the prospective special guardian and the parents of the child in question outlining the steps the local authority proposes to take in preparing a report and include information about support services and assessment of support needs. A leaflet including this information will be available for the social worker to take out to them.
3.8.3 They will need to complete a schedule 21 report on the matter in conjunction with a Supervising Social Worker (SSW). The Social Worker will complete the sections on the child and birth family and the Supervising Social Worker on the carers and medical report at Section 6, Special Guardianship Records. When the report is completed the SSW will send the authorised and quality assured part of the carer's assessment to the child's SW a minimum of eight working days prior to the filing date. The child's SW will also be responsible for completing the Support Plan. It is to be signed by both the Social Worker and Supervising Social Worker then forwarded to be signed off by the SW Team Manager along with the SGO Support Plan.


4. Issues of Support and On-going Contact

This section should be read in conjunction with guidance for Social Workers on financial assistance available in Special Guardianship Orders (Appendix 4: Information Pack for Financial Support Guidance for Social Workers).

4.1

Special Guardianship Support for Families

4.1.1

The level and extent of support should be established by undertaking a formal assessment at the point of the completion of the court report (or post order if a special guardian has requested an assessment) see Appendix 3: Assessment of Prospective Special Guardian's Needs for Support Services and Support Plan. The report will need to consider the particular child's needs and the needs of the prospective special guardian's including financial support.

In addition to the support provided by local authorities the Adoption Support Fund in England also covers therapeutic support for children, living in England, who were previously in care immediately before the making of a Special Guardianship Order.

Based on the assessment of needs, local authorities can apply for funding from the Adoption Support Fund.

4.1.2 Only a summary of this plan should be included in the Schedule 21 report for court.
4.1.3 All elements of the support plan should be shared with the family (and child, if appropriate) and confirmed in writing.
4.1.4 A plan should be in place at the time of the making of the Special Guardianship Order.
4.1.5 Special Guardian(s) will have explained to them by the Supervising Social Worker the range of services available to them whether there is a formal support plan or not. They should be encouraged to approach the agency at any stage for advice and support. Special Guardian(s) should be encouraged to maintain links with the agency through support groups or by being on the mailing list.
4.1.6 Where on-going support is determined from the start, the written plan will detail who will undertake the service provision identified and when and how the plan will be reviewed and the name of whom will be responsible for arranging the review.
4.1.7 At the time of completing the report for court the agreed plan for contact should be discussed and the contents formally agreed by the Special Guardian(s). The Social Worker should have sought the birth parents views and hopefully reached agreement about the appropriate levels of contact and support prior to the order being agreed. In cases where this is contested legal advice may need to be sought.
4.1.8 A copy of the Special Guardianship Support Plan, which includes arrangements for contact, should be retained on the child’s electronic record.

4.2

Accessing Special Guardianship Order Services and Support

4.2.1

Referrals and Assessment 

Referrals for SGO Support may come from a variety of sources. Initially all Special Guardians will be assessed with the child with whom they are matched for support and a Support Plan produced as appropriate. Once a draft plan is completed then potential Special Guardians should have an opportunity to consider the proposal and comment on it should they wish to do so. This will use information gathered during the assessment, all information already known regarding the child and the needs of the Special Guardian. This will also include any plans for financial support, following the order being made. Any support plans made must be reviewed annually (see paragraph 4.2.3).

4.2.2

However, in some cases approaches may be made through the Customer Services Centre after the order has been made. In such cases the eligibility criteria must first be checked, in terms of residency as detailed in the Special Guardianship Regulations. If it is clear that the responsibility for an assessment for Special Guardianship Support Services lies with Lincolnshire Children's Services an Assessment Referral form should be completed. A copy of the referral should be sent to the Locality FAST Team. This is to ensure the Social Worker has access to specialist advice regarding Special Guardianship Services and Support and for monitoring purposes.

4.2.3

Recording 

In addition to the written support plan, it is important that any Special Guardian support work undertaken is clearly recorded.

4.2.4

Reviewing the Support Plan 

Once a SGO support plan has been formulated it should be confirmed when, how and by whom the plan will be reviewed. If financial support is provided then an annual financial assessment and/or declaration will be required. Should there be no on-going allowances agreed and a support plan is active, the responsibility for reviewing the plan will remain with the social work team.

4.2.5 If in the intervening time there is a significant change of circumstances an earlier review may be requested. If this review relates solely to financial circumstances, written evidence of any change will be required by the Financial Review Team. If the request is for a review of support needs, this will be undertaken by the Locality FAST Team.
4.2.6

Once the review plan has been up-dated copies will be circulated to all the relevant parties.

4.2.7

Support for Birth Relatives 

Advice and assistance for birth relatives is available via the Adoption Support team.


5. Entitlement to Leaving Care Services

5.1 Special Guardianship Regulation 22 guidance states that 'Time spent under a special guardianship order is relevant when considering the child's entitlement to leaving care services'. Section 24(2) of the Children Act defines a person qualifying for advice and assistance. This includes a young person aged 16 to 18 who immediately before the making of the special guardianship order was 'looked after' by the local authority. Social Workers and Supervising Social Workers must ensure that Special Guardians are aware of the child's entitlement and how to access Leaving Care Services. This should be recorded within the Post SGO Support Plan.
5.2 When the child reaches 16 years of age, the Financial Review Team, will advise the Special Guardian of the child's Leaving care entitlement and will, if appropriate, and the child agrees, refer to the child to the Leaving Care Team for advice and support. A needs assessment will be undertaken by the Leaving Care Service, (see Leaving Care and Transition Procedure) when the child/young person reaches 16 years of age, this will determine what support may be provided.


6. Special Guardianship Records

6.1

The Child's File

6.1.1 All information regarding an application for a SGO will be kept on the child's file and electronic record.

6.2

File Closure

6.2.1 Once the SGO has been granted, allowances are agreed and there is no live casework or support plan, the Key Team ceases their involvement by transferring the case to the Financial Review Team in MOSAIC. The keyworker will add the role of U6 Financial Review only. A task will be sent to Financial Review Team notifying them of the transfer. The Financial Review Team will review all cases on an annual basis recording activity and outcomes as financial review. Should there be no on-going financial arrangements or support plan, the child's case file must be closed and archived at the point where the SGO is made unless there is an agreement to provide on-going support set out in the support plan.


7. Non-agency Special Guardianship Orders

7.1

Referral

7.1.1 A formal referral for a Special Guardianship Order will be received by the Head of Regulated Services. On receipt of the Notice of Intention to apply for a Special Guardianship Order, which is completed by prospective applicant, the notification will be formally acknowledged by the Head of Regulated Services. 
7.1.2 On receipt of the notice, a Special Guardianship Order file will be opened and the Team manager will allocate a Social Worker to complete the assessment. They will be referred to this guidance on the process.
7.1.3 The notice regarding the intention to apply for a Special Guardianship Order may come from the applicant(s) or from the solicitor acting for the applicant(s). It is not usually necessary for the applicants to engage a solicitor where the birth parent(s) is in agreement with the plan. In cases where an application is likely to be contested or the whereabouts of the legal birth parents are unknown then the applicants should be advised to engage a solicitor.

7.2

Referral from Local Authority Foster Carer - applying without the support of Local Authority

7.2.1 This type of non-agency application should be a rare occurrence, as efforts should be made to encourage foster carers to work in partnership with the department, in order to meet the needs of the child. Early advice should be sought from the Team Manager in Fostering if a foster carer wishes to proceed with an unsupported application. In circumstances such as this an independent worker will be appointed to complete the assessment.
7.2.2 Financial support in such circumstances will be subject to means testing.
7.2.3 In this situation foster carers who have had the care of the child in placement with them for a year can apply for a Special Guardianship Order, once they give 3 month's notice of their intention to do so. On request a formal Notice of Intention to apply for a Special Guardianship Order will be sent to the applicant by the fostering team for completion.

7.3

Counselling

7.3.1 Any action/counselling undertaken must be fully recorded on the case file.
7.3.2 Ideally any counselling should commence prior to any application being lodged with the court so that alternative orders under the Children Act 1989 or the Adoption and Children Act 2002 can be explored fully with the child, where appropriate, and the potential special guardian. The applicant should be advised to seek legal advice.
7.3.3 The purpose of counselling is to ensure that the nature and implications of Special Guardianship are understood fully by the child, the special guardian and the birth parents and that their wishes and feelings considered.
7.3.4 In counselling the prospective special guardians they should be made aware of the need to obtain the personal details of their family for inclusion in the Schedule 21 report for the court. The prospective special guardians should be seen at home both jointly and separately.
7.3.5 The child should also be seen in the company of the applicants so that a view can be obtained regarding the family relationships. Any other residents of the home should be interviewed and appropriate counselling provided.
7.3.6 The child needs to know and have an understanding of his/her birth origins as well as to be aware of the implications of special guardianship. She/he should be seen alone if the child is old enough (e.g. normally over 5 years) and it is important to note that even young children can understand the difference between a 'parenting' parent and a 'birth' parent. It is essential that the child's views are recorded and taken into account. Where a child has strong bonds with the birth parents it is crucial that this matter is given careful consideration and contact issues addressed.
7.3.7 Counselling the birth parent or anyone who has parental responsibility for the child is essential. Any birth parent not agreeing to the application should be advised to engage a solicitor as soon as possible.

7.4

Contact

7.4.1 Issues of any on-going contact should be discussed fully with all parties. Such arrangements may be made informally if all parties are in agreement. However there may be child protection concerns and consideration may need to be given to on-going supervisory arrangements. In the event of a dispute it may be necessary to consider the recommendation of a Section 8 order to run alongside the Special Guardianship Order.

7.5

References and Statutory Checks

7.5.1 The Fostering Team will initiate the DBS checks, child protection, local authority and health authority checks and inform the social worker of the outcome. 
7.5.2 The Supervising Social Worker will interview three personal references that the applicants have named. Two of these should be friends and not related to with applicant. The third reference should usually be a member of the extended family. The other requirements for referees laid out in the reference policy for adopters should be adhered to as a matter of good practice.

7.6

Health History and Summary

7.6.1 The applicants should follow the same process for obtaining a medical as for prospective adopters. Once a summary is received form the GP then a summary should be sent to the Supervising Social Worker.

7.7

Assessment and Recording

7.7.1 A record of the counselling must be noted fully on the case file. The result/outcome of the statutory checks must be recorded. An assessment must be made as to the suitability of the applicants to become a special guardian in order that a recommendation can be made to the court. There is no such thing as the 'ideal' or the 'typical' special guardian or situation/environment.
7.7.2 Limiting factors may include the age of the applicant(s), health issues, accommodation and police record. However, each case will need to be considered on an individual basis.
7.7.3 The assessment report must be agreed by the Team Manager for Fostering and the Locality FAST Team Manager.

7.8

Court Work and Preparation of Schedule 21

  (See Appendix 2: Schedule 21 Report for a Special Guardianship Order)

7.8.1

Lodging the application

After three months has elapsed since the notice of intention to apply for a Special Guardianship Order was received, the applicant can complete their application forms. These should be submitted in triplicate to the court. If the application is likely to be contested, then the social worker should liaise with the applicant's solicitor regarding the timing and submission of the application forms and reports. In these cases it is likely that the solicitor will deal with the application forms. 
7.8.2 Where an application is lodged during other court proceedings the time limit for completion of the report will be set by the court.
7.8.3 The time limit for completion of the reports in all other applications will be set at the first hearing of the application.
7.8.4 Four copies of the report need to be sent to the court.

7.8.5

CAFCASS

In any proceedings the court will appoint a Children's Guardian, a reporting officer or a CAFCASS officer. This person will be independent of the agency.

7.8.6

Attendance at Court

The Social Worker or Supervising Social Worker if involved must attend the court with the applicants.

7.9

Schedule 21 Report

7.9.1 The information required for a local authority report is the same for all Special Guardianship Order applications. The Schedule is lengthy and the details required are prescriptive (see Appendix 2: Schedule 21 Report for a Special Guardianship Order).
7.9.2 Written information should be sent to the prospective special guardian and the parents of the child in question outlining the steps the local authority proposes to take in preparing a report and include information about support services and assessment of needs. A leaflet with this information on it will be available for the social worker to take out to them.
7.9.3 The social worker will need to complete a schedule 21 report on the matter in conjunction with a worker from fostering.


Appendices

Appendix 1: Notification of Intention to Apply for a Special Guardianship Order

Appendix 2: Schedule 21 Report for a Special Guardianship Order

Appendix 3: Assessment of Prospective Special Guardian's Needs for Support Services and Support Plan

Appendix 4: Information Pack for Financial Support Guidance for Social Workers

End