Kinship Care and Special Guardianship Orders

Around 180,000 children in the UK are currently being raised by family members in kinship care because their parents are unable to look after them.  Kinship carers are often grandparents but can include older siblings, aunts, uncles and family friends.  The Adoption and Children Act 2002 introduced Special Guardianship Orders to deal with these situations and bridge the gap between a residence order (which a parent can apply to discharge without the permission of the court) and adoption (which ends the legal relationship between a child and their parents).

What is a Special Guardianship Order?

A special guardianship order is an order made by the Court that places a child to love with someone other than their biological parent(s) on a long-term basis.  The guardian will be granted parental responsibility, which they will be able to exercise to the exclusion of all others with parental responsibility (usually those named on the child’s birth certificate).  This means that the guardian can make decisions for the child such as the school they attend, medical procedures they receive and activities they participate in.  Guardians can also take a child out of England and Wales for a period of up to three months, in comparison with a child arrangements order under which a child can only be taken out of the jurisdiction for one month.

The Order will ordinarily last until a child reaches 18 or a further order is made.

Who can Apply?

You must be aged over 18 and cannot be the parent of the child in question to make an application.  The following categories of people are entitled to apply:

• Any guardian of the child;
• Any individual who is named in a Child Arrangements Order as a person with whom the child is to live;
• A local authority foster parent with whom the child has lived for at least one year immediately preceding the application;
• A relative with whom the child has lived for a period of at least one year immediately preceding the application;
• The child is in Local Authority care and the Local Authority consents to you making an application; or
• You have permission from the court.

What will the Court Consider?

When deciding whether to grant a special guardianship order, the Court will consider the Welfare Checklist as set out in the Children Act 1989.  This is as follows:

• The ascertainable wishes and feelings of the child concerned in light of their age and understanding;
• The physical, emotional and educational needs of the child;
• The likely effects of any change in the child’s circumstances;
• The child’s age, sex, background and any other characteristics which the Court considers relevant;
• Any harm the child has suffered or is at risk of suffering;
• The capability of the applicant in meeting the child’s needs; and
• The range of powers available to the Court.

 How to Apply

Applications can be made by an individual or jointly by two or more people to become a child’s special guardian.  Any person wishing to apply for a special guardianship order must give three months written notice to the Local Authority confirming their intention to apply.  The Local Authority will then prepare a report for the Court dealing with the following:

• Whether the child has brothers and sisters and details of both parents;
• The relationship the child has with other family members and the arrangements for the child to keep in touch with extended family;
• The parent(s)’ and child’s wishes and feelings;
• The family circumstances of the prospective guardian;
• Parenting capacity; and
• An assessment of how a special guardianship order would meet a child’s long-term interests as compared with other types of order, such as adoption.

If there are no care proceedings, you will need to issue an application using Form C1, Form C13A and Form FM1.  Whilst it is not a requirement, it also assists to submit a statement in support with your application covering your relationship with the child, experience of caring for them, your understanding of the reasons why the child should not be cared for by their parents, the steps you have taken to notify the Local Authority of your intention and plans for the child’s care including future contact with their parents.

Can an Order be Discharged?

As mentioned, parents of the child cannot apply to discharge the Order without the permission of the Court.  The granting of this permission is known as ‘leave to apply’.

In the recent case of Re M (Special Guardianship Order: Leave to Apply to Discharge) the Court of Appeal clarified the test for an application for permission to apply to discharge a special guardianship order.  This is a two-stage test:

1. The Court must find that there has been a significant change in circumstances. Significant means “considerable, noteworthy and important” but not “exceptional, immense or insurmountable.”
2. There must be a real prospect of success.

The effect of hearing or not hearing the application on the child’s welfare is not paramount at this stage.

Speak to our Family Law specialists

IBB Law’s family team can provide expert advice on all family law issues.  To contact the team please email familylaw@ibblaw.co.uk or call 03456 381 381.