The concept of special guardianship orders have been with us for some years. It is a private law order made under the Children Act and is intended for those children who cannot live with their birth parents.
The effect of the special guardianship order is to secure a child’s long term placement with a special guardian. A special guardian holds parental responsibility for a child, giving day to day control over bringing up and making decisions about a child. A special guardian can make these decisions without reference to the birth parents and if there is disagreement between the parents and the special guardian, then the special guardian’s opinion takes precedence. A special guardian’s parental responsibility is able to override a parent’s.
The Government ordered a review of special guardianship following concern it was being misused by Local Authorities. There have been concerns that some Local Authorities were pursuing special guardianship orders too aggressively and suggestions that in circumstances Local Authorities were trying to pressurise foster carers into agreeing to special guardianship orders being made on the basis that this would be a cheaper option to long term fostering.
The special guardianship (amendment) regulations 2016 came into force on 29 February 2016 requiring Local Authorities when they prepare their special guardianship reports to deal with any harm which a child has suffered and any risk of future harm to a child posed by their parents, relatives or any other person relevant. It also requires the report to ensure that both the child’s current needs and likely future needs are dealt with in the report. The new regulations also require an assessment of the nature of the child’s relationship with the prospective special guardian both at the time of the assessment and in the past, and requires a more detailed consideration of the parenting capacity of the prospective special guardian.
Bill Wilkins is a partner in the Stephens Scown family team. He specialises in all aspects of family and child care law and is a member of the Law Society’s Child Care Panel. Bill can be contacted on 01932 210700 or email solicitors@stephens-scown.co.uk.