It has been recognised by Government that there needs to be a legal status for children offering greater long term security than long term fostering but without the severance from their birth family which arises when an adoption order is made.
The Adoption and Children Act 2002 was therefore introduced and provides the legal framework for special guardianship under the Children Act 1989.
What is Special Guardianship?
A special guardianship order is an order appointing a person to be a child’s special guardian. Special guardians have parental responsibility for a child until they are aged 18 (unless the order is discharged before then). Subject to any other order in force relating to a child under the Children Act 1989, parental responsibility can be exercised to the exclusion of any other person with parental responsibility apart from another special guardian. There are some exceptions which are;
(a) situations where the law requires the consent of all persons with parental responsibility in a matter affecting the child e.g. sterilisation, circumcision.
(b) any rights which a parent of the child has in relation to the child’s adoption or placement for adoption.
(c) the requirement for either the written consent of every person with parental responsibility or leave of the court before:
(i) causing the child to be known by a new surname;
(ii) removing the child from the UK for a period of more than three months;
(iii) where there is an adoption placement order in force, in which case the special guardian’s exercise of parental responsibility may be restricted by the adoption agency.
(iv) a local authority’s ability to determine the extent to which a special guardian may meet their parental responsibility for the child in cases where a care order is subsequently made.
The special guardian has the right to make decisions about the child’s day-to-day care. A special guardianship order does not remove a parent’s parental responsibility for the child. Parents retain the right to be consulted on major decisions that concern the child such as changing the child’s name.
Support for the Special Guardian
The local authority must make arrangements for the provision of special guardianship support services. Local authorities are required to make a range of support services available in their area to meet the needs of people affected by special guardianship. Special guardianship support services are defined as:
Who can apply for a Special Guardianship Order?
A special guardian must be over 18 years old and cannot be the parent of the child.
Those who may make an application to the Court without leave are as follows:-
Any other person may apply for a special guardianship order but will have to obtain leave of the Court before he/she can do so.
If you would like further information about special guardianship, including how to make an application and whether or not it would be the best route to take in your particular case, please contact us.