Full parental responsibility is given to the special guardian whilst allowing the birth parents to maintain contact with their child. The guardian will be responsible for making day-to-day decisions for the child along with more important decisions regarding their education and healthcare. The parents will retain their parental responsibility but the special guardian can exercise their parental responsibility to the exclusion of the parents. This means that where there is a conflict between the parents and the special guardian, the guardian’s decision will take precedence.
Special guardians cannot however overrule the birth parent’s refusal to consent to the adoption of the child. A special guardian must also obtain the written consent of every person with parental responsibility, or the leave of the court, to change the child’s surname or remove the child from the UK for a period of more than three months.
Special guardianship orders can be made at the conclusion of care proceedings or following the making of a private law application.
Special guardianship order - case studyMr and Mrs Bryant (not their real names) had applied to the local authority to be granted care of their infant niece. The child had been removed from her birth parents after it was decided that they were unable to care for her due to significant learning difficulties.
The local authority had rejected Mr and Mrs Bryant’s application and the child remained in the care of the local authority. They did not believe they were able to challenge this decision, particularly as they were not entitled to means-tested legal funding and could not afford to pay for legal representation themselves. They also believed that the court was unlikely to side with them over the Local Authority.
The local authority planned for the child to be put up for adoption, while Mr and Mrs Bryant argued that the best interests of the child were to remain within the extended family where her birth parents could have at least some involvement in her upbringing.
A few days before the hearing, Mr and Mrs Bryant became eligible for legal funding. At very short notice, a specialist Stephensons child care solicitor represented Mr and Mrs Bryant in a five-day hearing, in which the judge ordered that the child be placed with her aunt and uncle under a special guardianship order.
This was a highly sensitive and difficult case where short time scales required efficient and experienced representation.
Who can apply for a special guardianship order?
Special guardians must be over the age of 18 and must not be a parent of the child. Often they are family members or the child’s current foster carers. The following individuals can apply to be special guardians:
- Any guardian of the child;
- A relative with whom the child has lived for a period of at least one year before the application;
- A foster parent – the child must have lived with the foster parent for at least one year before the application;
- If the child is in care then anyone who has consent from the local authority can make an application;
- Anyone named in a child arrangements order as a person with whom the child is to live;
- A person who has the consent of those who have current parental responsibility;
- Anyone who has leave of the court;
- An individual with whom the child has lived with for three of the last five years.
Notice of the application is to be given to the local authority who will write a report for the court to determine whether or not they believe the potential special guardian is suitable. The report will include information about the potential special guardian, the wishes of the child and the advantages of a special guardianship.
Local authority support services
Once a special guardianship order has been granted, the local authority is required to make certain arrangements in order to support the child and special guardian further such as:
- Assisting with contact arrangements between the child and their parents where the local authority considers this beneficial;
- Means-tested financial assistance;
- Counselling, respite care and other support services.
Our solicitors have extensive experience in children law matters and are recognised in the Legal 500 and the Chambers Guide to the Legal Profession as leaders in the field of child care. To speak to member of our team call today on 0203 816 0548.