special guardianship order

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Need legal advice relating to a Special Guardianship Order (SGO)? Our knowledgeable family law solicitors in Leeds, London & Harrogate are here to help. We have a team of highly experienced family law solicitors led by Laura Clapton who is renowned in the field of Family Law & Family Mediation.

What is a Special Guardianship Order?

The purpose of a Special Guardianship Order (SGO) is to give children a secure, permanent home without legally severing the child’s link to their birth parents.

SGOs are commonly made regarding children who:

• Are remaining in the care of wider family members;
• Require minimal disruption from parents in relation to decisions about their care and welfare;
• May require a level of support from the local authority (LA) longer term.

Foster carers who choose to care for a child long term are also being encouraged to become special guardians (SGs) to reinforce the child’s sense of belonging.

What does a special guardianship order do?

A SGO is a private law order that appoints a person or persons as a child’s SG (section14A(1) Children Act 1989). It gives a person parental responsibility (PR) for a child. This is sometimes described as “super-parental responsibility” because the SG can exercise PR to the exclusion of any other person with PR, except for another SG (section 14C, CA 1989). For example, a SG can make decisions about a child’s schooling which override the decisions and wishes of the child’s parents. However, an SG cannot change a child’s surname or remove them from the Country for 3 months or more without permission from the Court or the other persons with PR.

An SGO lasts until a child reaches the age of 18 unless discharged by the court.

Who can apply to be special guardian?

Any person who is aged over 18 and is not the parent of the child who is the subject of the application can apply for an SGO. More than one person can be appointed as a child’s special guardian (section 14A, CA 1989). The following persons do not require permission from the court before applying to become a special guardian:-

• Any guardian of the child;
• Any individual in whose favour a “live with” order (formally a residence order, now part of a Child Arrangements Order) is in force in respect of the child;
• Any person with whom the child has resided for a period of at least three years (this need not be continuous but must not have begun more than five years before, or ended more than three months before the application is made);
• Where a “live with” order is in force, any person who has the consent of every person in whose favour the order was made;
• Where the child is in the care of the LA, any person who has the consent of that authority;
• Any person who has the consent of each of those persons (if any) who have PR;
• A LA foster parent with whom the child has lived for a period of at least one year immediately preceding the application;
• A relative with whom the child has lived for at least one year immediately preceding the application.

Any other person wishing to make an application for an SGO will require permission from the Court.

A prospective SG must give the relevant LA three months’ notice of their intention to apply for an SGO.

Factors of the Court when making a SGO

The Court cannot make a SGO without a Local Authority report in relation to the suitability of the prospective SG to care for the child.

The Court will consider the welfare checklist set out at section 1(3) of the CA 1989 including:-

• The wishes and feelings of the child, considered in the light of his age and understanding;
• The child’s physical, emotional and educational needs;
• The likely effect on the child of any change in his circumstances;
• The child’s age, sex, background and any characteristics of his, which the court considers relevant;
• Any harm the child has suffered or is at risk of suffering;
• How capable each parent (and any other person in relation to whom the court considers the question to be relevant) is of meeting the child’s needs;
• The range of powers available to the court.

The court must also consider the following:

• Whether a CAO in relation to contact should also be made in respect of the child;
• If a contact order or CAO made with respect to the child is not discharged, any enforcement order relating to that contact order or CAO should be revoked;
• Whether any section 8 order in force with respect to the child should be varied or discharged;
• If a contact activity direction has been made regarding contact with the child and is in force, that contact activity direction should be discharged.

additional Court Powers when making a SGO

When the court deals with an application for an SGO, it also has the power to:

• Give leave for the child to be known by a new surname or make a specific issue order, which can include changing a child’s name;
• Grant leave for a child to be removed from the UK, either generally or for a specific purpose;
• Attach conditions to an SGO. These are subject to the same limitations as conditions attached to a residence order/CAO.

The conditions can apply to:

• the person in whose favour the order is made;
• a parent of the child, including the unmarried father who has not acquired PR for his child;
• a person who is not a parent but who has PR for the child, for example, a guardian or a person with a “live with” order; or
• a person with whom the child is living.