3.9.1 Special Guardianship Orders
RELEVANT GUIDANCE
DfE, Special Guardianship Guidance (2017)
Adoption and Special Guardianship Support Fund
AMENDMENT
This chapter was updated in June 2019 in line with the Children and Social Work Act 2017 and revised statutory guidance which require schools, through the designated teacher to provide support to previously Children in Care.
A previously Child in Care is one who is no longer looked after in England and Wales because they are the subject of an Adoption, Special Guardianship or Child Arrangements Order which includes arrangements relating to with whom the child is to live, or when the child is to live with any person, or has been adopted from 'state care' outside England and Wales. It has also been updated to acknowledge the Local Government and Social Care Ombudsman good practice points to follow when working with Special Guardians. A link to the full report 'Firm Foundations: Complaints about Council Support and Advice for Special Guardians (Local Government and Social Care Ombudsman) (May 2018)' was added - see Appendix 5: Local Government & Social Care Ombudsman – Firm Foundations: complaints about council support and advice for special guardians (May 2018). Please reference.
This chapter is currently under review.
1. Legislative Context
Special Guardianship is a legal status that was first introduced as part of the implementation of the Adoption and Children Act 2002 on 30th December 2005.
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 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:
The introduction of the Special Guardianship (Amendment) Regulations 2016 from 29th February 2016 requires an assessment of:
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2.4 | Children subject to a Special Guardianship Order are eligible as previously Children in Care for additional support with their education (Sections 20(4) and 20A(4) of the Children and Young Persons Act 2008). |
3. Working with Children and Families Already Known to the Local Authority/Agency Applications
3.1 Referral |
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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 or following written notice to the local authority of an individual's intention to make an application for a special guardianship order. | |
3.1.2 | The initiative regarding an application for a SGO can come from a variety of sources, including:
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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 Service Manager (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 prospective special guardian 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 prospective special guardian. 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. |
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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. |
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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). |
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3.2 Counselling |
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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 prospective special guardian 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 parents and that their wishes and feelings are considered. Consideration should also be given to any financial support which may be required by the prospective special guardians. | |
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 prospective special guardians 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 parents it is crucial that this matter is given careful consideration and contact issues addressed. It is important that special guardians are aware of the potential life-changing and long term consequences for them as well as the child and should be provided with written information as well as verbal advice and guidance (see Appendix 5: Local Government & Social Care Ombudsman – Firm Foundations: complaints about council support and advice for special guardians (May 2018)). |
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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. |
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3.3 Contact |
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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. |
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3.4 References |
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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 prospective special guardians have named. Two of these should be friends and not be related to the prospective special guardian. 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. |
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3.5 Health History and Summary |
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3.5.1 | The Child The Social Worker should summarise the information from the last Health Needs Assessment to incorporate into the Schedule 21. |
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3.5.2 | The Prospective Special Guardians 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 prospective special guardians are not known to the department and the request for special guardianship has come during proceedings the prospective special guardian 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. |
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3.6 Assessment and Recording |
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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 prospective special guardians 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 prospective special guardian(s), health issues, accommodation and police record. However, each case will need to be considered on an individual basis. |
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3.7 Education |
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3.7.1 | As a previously child in care, the child subject to a Special Guardianship Order will be entitled to additional education support. Therefore, where the child has been receiving additional support, or is identified as being required, this can be continued. | |
3.8 Court Work and Preparation of Schedule 21 |
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(See Appendix 2: Schedule 21 Report for a Special Guardianship Order) |
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3.8.1 | Lodging the Application After three months has elapsed since the notice of intention to apply for a Special Guardianship Order was received, the prospective special guardian 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 Service Manager Regulated Services. |
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3.8.2 | 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. |
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3.8.3 | 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. |
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3.8.4 | Attendance at Court The Supervising Social Worker if involved may be required to attend the court with the prospective special guardians. |
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3.9 Schedule 21 Report |
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3.9.1 | 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 Children in Care 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). | |
3.9.2 | 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 support needs. A leaflet including this information will be available for the social worker to take out to them. | |
3.9.3 | 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 and Supervising Social Workers).
4.1 Special Guardianship Support for Families |
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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, if a special guardianship order has already been made, at the point that the special guardian requests 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. Note that as a previously child in care, the child subject to a Special Guardianship Order will be entitled to additional education support. This will be accessed through the designated teacher in the child's school. In addition to the support provided by local authorities the Adoption and Special Guardianship 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 and Special Guardianship 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 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. |
4.1.9 | Children's Financial Review Team should be contacted to arrange an initial financial assessment. Please refer to Appendix 4: Information Pack for Financial Support Guidance for Social Workers and Supervising Social Workers. Please note that for any cases where a child subject of the orders will live with their guardians outside of the UK, then special circumstances will apply. Please contact Children's Financial Review to discuss this process. |
4.2 Accessing Special Guardianship Order Services and Support |
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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 prospective. 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. (See paragraph 4.2.3). |
4.2.2 | 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 |
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. |
4.2.5 | 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 | As the Children's Financial Review Team are the 'key' team, when the child reaches 16 years of age, the Children's 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 |
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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 |
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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 Children's Financial Review Team will financially 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 |
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7.1.1 | A formal referral for a Special Guardianship Order will be received by the Service Manager Regulated Services. On receipt of the Notice of Intention to apply for a Special Guardianship Order, which is completed by the prospective special guardian, the notification will be formally acknowledged by the Service Manager 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 prospective special guardian(s) or from the solicitor acting for the prospective special guardian(s). It is not usually necessary for the prospective special guardians 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 parents are unknown then the prospective special guardians should be advised to engage a solicitor. |
7.1.4 | No financial assessment will be undertaken for private Law Applications where the child has no LAC status or where no foster allowance is paid in respect of the child. |
7.2 Referral from Local Authority Foster Carer - applying without the support of Local Authority |
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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 months 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 prospective special guardian by the fostering team for completion. |
7.3 Counselling |
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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 prospective special guardian. The prospective special guardian 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 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 prospective special guardians 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 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 |
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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 |
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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 prospective special guardians have named. Two of these should be friends and not related to the prospective special guardian. 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 |
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7.6.1 | The prospective special guardians 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 |
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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 prospective special guardians 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 prospective special guardian(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 |
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(See Appendix 2: Schedule 21 Report for a Special Guardianship Order) |
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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 prospective special guardian 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 prospective special guardian'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 prospective special guardians. |
7.9 Schedule 21 Report |
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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. |
8. Process Following the Making of a Special Guardianship Order
Upon the making of an Order the child's social worker will record the Special Guardianship Order as a new Legal Status in the Legal section of MOSAIC. If there is an on-going plan already in place, the financial need would be added to the current plan on MOSAIC and the service provided to meet this need would be "Residence Order / Child Arrangements Order / Special Guardianship Order - financial support", when all the other needs are met. |
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8.1 Support Plan Review |
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Where a Special Guardianship Support Plan is active and there is continued involvement from Children's Services, the Special Guardianship Support Plans must be reviewed taking into account the following:
The Team Manager/Practice Supervisor will allocate a Social Worker to undertake the Review. The allocated Social Worker will arrange to visit the child and carers to complete the review. Any change to the Special Guardianship Support Plan will be subject to the approval. |
9. Financial Payment Review Process
9.1 | When a carer receives payment for a child who is placed with him/her on a Special Guardianship Order, these arrangements must be reviewed annually to ensure the child's needs continue to be met and to ensure that the carer is still entitled to receive the payment. |
9.2 | When the annual review is due, the Children's Financial Review team write to the guardian, asking them to complete the relevant form. The full assessment process is then followed, and the applicable changes will be made to the allowances paid in respect of the child. All payments are entered onto Mosaic, and sent for authorisation to the Service Manager and then sent to Softbox in order that payments can be actioned. The next review date will be added to MOSAIC with a due date. All Special Guardians will receive written confirmation of the outcome of the Review. As part of the annual review process, guardians are offered a review of their Support Plan. They can also do this at any point between reviews by contacting the CFR team. If during correspondence with a guardian, the CFR team have concerns as to the wellbeing of the children or the guardian, or have concerns, they can offer the possibility of a review of their Support Plan. In all instances, CFR are to obtain as many details as possible from the guardians. They will then offer them a review, subject to their approval, and inform them what that would mean. They then pass all details onto the Service Manager, for approval to pass to the CSC as a referral. Guardians can then be contacted to get final approval before referring to the CSC. The Children's Financial Review Team will end their involvement once SGO allowances cease. |