There are many circumstances that may lead to a Special Guardianship Order being made and many come as a result of an emotional and tumultuous time for the child in question. 

What is a Special Guardianship Order?

A Special Guardianship Order is made by the court to appoint one or more individuals to be a child’s ‘special guardian’. This is effectively an enhanced Child Arrangements Order as the child will be deemed to live with you and you will have parental responsibility for them.

A Special Guardianship Order is intended to be permanent. It may be useful in a situation where the child’s birth parents are no longer able to look after the child on a long-term basis due to health or social reasons, for example. A family member or friend may take over the long-term care of the child in such a situation and this is where a Special Guardianship Order can help.

Who can apply for a Special Guardianship Order?

The following individuals are able to make an application for a Special Guardianship Order:

• Any guardian of the child
• Any individual named in a Child Arrangements Order as a person with whom the child is to live
• A person who has lived with the child for three out of the last five years and where the child has not stopped living with them more than three months before the application is made
• A local authority foster parent who the child has lived with for at least one year immediately preceding the application
• An individual who has been given permission by the court to make the application

Any individual who wants to make an application must give three months prior written notice of their intention to the local authority where the child is normally resident. The application for a Special Guardianship Order can be made three months after that notice has been given. The local authority will be asked to prepare a report on the suitability of the applicant and that report will help the court make a decision on whether to award a Special Guardianship Order.  

Am I eligible to be a Special Guardian?

In order to be considered as a Special Guardian you must be over the age of 18. You won’t be a parent of the child but you can be a relative - although you do not have to be.

What factors will the court take into account when deciding whether to make a Special Guardianship Order?

The court’s main consideration is the child’s welfare and any decision that is made will be in accordance with what is in their best interests. The court will consider the same factors as when deciding whether to make a Child Arrangements Order. These factors are:

• The child’s wishes and feelings in light of their age and understanding
• The child’s physical, educational and emotional needs
• The likely effect of the child of any change of circumstances
• The child’s age, sex and background and any other relevant characteristics
• Amy harm which the child has suffered or is at risk of suffering
• The parent or carer’s ability to meet the child’s needs.

The Court will also consider the applicant’s connection with the child and whether there is any risk that the application will disrupt the child’s life to such an extent that they will be harmed by it.

What are the effects of a Special Guardianship Order?

If a Special Guardianship Order is granted, the newly appointed special guardian will have parental responsibility for the child until he or she attains the age of 18.

The special guardian is entitled to exercise parental responsibility for the child to the exclusion of any other person who also has parental responsibility (apart from another special guardian). For example, the effect of a Special Guardianship Order allows the newly appointed special guardian to remove the child from the jurisdiction for a period of up to three months without the consent of those with parental responsibility. The special guardian would, however, need the consent of other special guardians - if there are any.

Some decisions will still need consent from all those who have parental responsibility, such as changing the child’s name, adoption rights and key medical decisions. Any period of longer than three months abroad will also need the written consent of all those with parental responsibility.

It is important to note that a Special Guardianship Order does not extinguish the legal relationship between the child and their birth parents as an Adoption Order would do. It is usual for special guardians to exercise parental responsibility on their own and make decisions they believe to be in the child’s best interests, but the court can order that the child still has contact with their birth parents.

Take the example of where a parent’s new partner has lived with the child for three out of the last five years and wishes to make a sole application for a Special Guardianship Order. If successful, this would allow the partner who is named as the special guardian to make decisions regarding the child’s upbringing to the exclusion of the child’s parent, which of course would - in most circumstances - be an unwanted and unacceptable outcome.

What happens if a child’s parents and the special guardian disagree?

After a Special Guardianship Order is made the special guardian will share parental responsibility with the child’s parents. Wherever possible, a child’s parents should be consulted on important decisions affecting the child’s welfare. However, the very nature of a Special Guardianship Order is that it gives the special guardian enhanced parental responsibility over others involved with the child’s upbringing. Special guardians can, therefore, make final decisions about most things (subject to the ones mentioned above where consent of all those with parental responsibility is required) even when the parents do not agree.

Are there alternatives to Special Guardianship?

1. Adoption – similar to a Special Guardianship Order, this places the child in a permanent home and the applicant, if successful, will have parental responsibility for the child. The key difference is that an Adoption Order extinguishes the birth parents’ parental responsibility and the child risks losing links with their wider family.
2. A Child Arrangements Order – this is made by the court to determine with whom the child should live. An individual named in a Child Arrangements Order as the person with whom the child should live will automatically acquire parental responsibility for the child. That parental responsibility will be on an equal footing to that of the other parent.
3. Long term fostering is another alternative, however foster parents do not acquire any parental responsibility for the child and have no legal basis on which to make important decisions regarding the child’s welfare.

If you are thinking of making an application for a Special Guardianship Order or would like further advice in this area, we can help. Please get in touch and we will arrange for you to talk to one of our specialist family lawyers.