Applications for Special Guardianship Orders and the Special Guardianship Support Scheme
SCOPE OF THIS CHAPTER
RELATED NATIONAL GUIDANCE
In December 2021 this chapter was revised to reflect Practice Guidance on Special Guardianship published by the Family Justice Council (June 2020). Information was also added on the School Admission Code.
1. Introduction and Background
Special Guardianship provides an alternative legal status for children that offers greater security than long term fostering but without the absolute legal severance from the birth family that stems from an adoption order.
It addresses the needs of a significant group of children, who need a sense of stability and security but who do not wish to make the absolute legal break with their birth family that is associated with adoption.
It will also provide an alternative for achieving permanence in families where adoption, for cultural or religious reasons, is not an option.
A Special Guardianship Order can offer greater stability and legal security to a placement than a Child Arrangements Order.
Children subject to a Special Guardianship Order are eligible as Previously Looked After Children for additional support with their education (Sections 20(4) and 20A(4) of the Children and Young Persons Act 2008). For further information, please see the Education of Looked After and Previously Looked After Children Procedure.
Special Guardians will have Parental Responsibility for the child; this will be shared with the child's parents. However the parent's ability to exercise Parental Responsibility is subject to the ability of the special guardian to exercise Parental Responsibility to the exclusion of any other person.
People thinking about becoming special guardians will be provided with clear, user-friendly information to help them make informed choices. This should include information on support available and how this is reviewed.
Derbyshire County Council aims to promote the welfare of and improve outcomes for children and young people who, because they are unable to live with their parents, are being brought up by members of their extended families, friends or other people who are connected to them.
Derbyshire County Council is committed to supporting family/friend carers in a variety of ways.
The majority of children and young people can and will have their needs met using universal and targeted services. Special Guardianship support could for example include:
- Financial Support (see Section 13, Financial Support);
- Services to enable children, Special Guardians and parents to discuss matters relating to the arrangements for a child;
- Assistance including mediation in relation to contact between the child and their parents, relatives and significant others;
- Therapeutic services for the child;
- Assistance to ensure the continuance of the relationship between the child and the Special Guardian, including training to meet any special needs of the child, short break care and mediation; and
- Provision of counselling, advice and information.
Special Guardianship Support Plans will be subject to the agreement of the Head of Service responsible for that child if the child was previously Looked After.
2. Who May Apply?
Applications for Special Guardianship may be individual or joint. Joint applicants do not need to be married. Special Guardians must be 18 or over and cannot be the parent of child in question.
The following persons may apply without having to obtain the leave of the court:
- Any guardian of the child;
- Where the child is subject of a Care Order, or an Interim Care Order, any person who has the consent of the Local Authority;
- A Local Authority foster carer who is a relative of the child or with whom the child has lived for 1 year immediately preceding the application (even if the Local Authority does not consent);
- Anyone who is named in a Child Arrangements Order as a person with whom the child is to live;
- Anyone who has the consent of each person named in a Child Arrangements Order as a person with whom the child is to live;
- Anyone with whom the child has lived for 3 out of the last 5 years, providing the child has not ceased to live with the proposed applicant more than 3 months before the making of the application;
- Anyone who holds a Child Arrangements Order with respect to the child or who has the consent of all those in whose favour a Child Arrangements Order is in force;
- Anyone with whom the child has lived for 3 years;
- Anyone who has the consent of all those with parental responsibility for the child;
- Anyone, including the child, who has the leave of the Court to apply.
Any action/counselling undertaken must be recorded on the child's file.
Ideally, counselling should commence prior to any application being lodged with the Court and the applicant should be advised to seek legal advice where appropriate. The purpose of the counselling is to ensure that the nature and implications of Special Guardianship are fully understood by the child, the Special Guardian and the birth parents and that their wishes and feelings are considered and recorded.
The prospective Special Guardians should be made aware of the need to obtain the personal details of their family for inclusion in the Schedule 21 report for Court. The prospective Special Guardians should be seen at home, jointly and separately. The child should be seen in the company of the applicants so that a view can be obtained regarding the family relationships. Any other residents of the home should be interviewed and appropriate counselling provided.
The child needs to have an understanding of their birth origins as well as to be aware of the implications of special guardianship. They should be seen alone if old enough and their views recorded. Where a child has strong bonds with their birth parents it is crucial that this matter is given careful consideration and contact issues addressed.
The birth parents or anyone with parental responsibility also needs to be provided with counselling and advised regarding any available support arrangements. Any birth parent not agreeing to the application should be advised to engage a solicitor.
4. Parental Responsibility
Special Guardians share parental responsibility for the child with the parents but are entitled to exercise such responsibility to the exclusion of any other person with parental responsibility and also have the primary responsibility for day to day decision-making in relation to the child.
The child's parents will continue to hold parental responsibility but their exercise of it is limited by virtue of the Special Guardian's right to exercise parental responsibility to the exclusion of any other holder of parental responsibility.
However, there are certain steps in a child's life which require the consent of everyone with parental responsibility, for example:
- Change the child's family name;
- The removal of the child from the United Kingdom for longer than 3 months.
A Special Guardianship Order made in relation to a Child in Care will replace the Care Order and the Local Authority will no longer share parental responsibility.
A Care Order, however, will not automatically revoke a Special Guardianship Order although the Special Guardian's exercise of parental responsibility will be restricted as the Local Authority will have ultimate responsibility for decision-making under the Care Order.
5. The Circumstances in which a Special Guardianship Order may be made
The Court may make a Special Guardianship Order in any family proceedings concerning the welfare of the child and following an assessment by the local authority. This applies even where no application has been made and includes adoption proceedings.
Any person making an application for a Special Guardianship Order must give 3 months written notice to their Local Authority of their intention to apply. In relation to a Child in Care, the notice will go to the Local Authority looking after the child. In all other cases, the notice will be sent to the Local Authority for the area where the applicant resides. The Local Authority receiving the notice will then have a duty to provide a report to the Court.
The only exception to the requirement for 3 months' notice is where the Court has granted leave to make an application and waives the notice period.
Where the Local Authority has received notice from an applicant or a request for a report from the Court, it should send written information about the steps it proposes to take in preparing the report to the prospective Special Guardian and the parents of the child in question. This should include information about Special Guardianship support services and how in the future to request an assessment of needs for support.
6. Planning Meeting
Once notice has been received that an application for Special Guardianship is to be made or where a Court waives the need to give such notice, the notice or order should be passed to the allocated Social Worker or, if the child is not previously known, arrangements must be made for the case to be allocated to a Social Worker.
The allocated Social Worker should arrange a planning meeting as soon as practicable after the notice is received. The planning meeting should clarify the steps to be taken, who will carry out the necessary assessments and who will contribute to the report for the Court. Court timescales will need to be clarified.
The Social Worker or Social Workers preparing the Court report should be suitably qualified and experienced. There are no specific requirements as to the level of qualification or experience required and it will be for the manager of the relevant Social Work Team to ensure that the allocated worker is competent to write the report.
In all cases there will need to be:
- An assessment of the current and likely future needs of the child (including any harm the child has suffered and any risk of future harm posed by the child's parents, relatives or any other person the Local Authority considers relevant). Where the assessment identifies that the child requires services from an agency other than Children’s Social Care, the social worker should consult with the relevant Clinical Commissioning Group (CCG) or Local Education Authority;
- An assessment of the prospective Special Guardian's parenting capacity including:
- Their medical history; DBS checks, references and other statutory checks; any previous assessment undertaken in respect of the prospective special guardian; any likely impact the Special Guardianship Order may have on relationships between the child and the parent;
- Their understanding of, and ability to meet the child's current and likely future needs, particularly, any needs the child may have arising from harm that the child has suffered;
- Their understanding of, and ability to protect the child from any current or future risk of harm posed by the child's parents, relatives or any other person the Local Authority consider relevant, particularly in relation to contact between any such person and the child;
- Their ability and suitability to bring up the child until the child reaches the age of eighteen.
An assessment of the proposed contact arrangements and the support needs (See Section 12.5, Assessment for Support) of the child, parents/those who have parental responsibility and the prospective special guardian.
7. Approval of Special Guardianship for Children in Care
A formal referral for a Special Guardianship Order for a Child in Care can only be made following a Looked After Review at which Special Guardianship is recommended or at the request of the Court during proceedings. There is no need for an additional planning meeting in these circumstances. However, the case can be presented to the Professional Advisor Meeting and/or Adoption Agency Decision Maker for advice if necessary.
Adoption Agency Regulations 2005 state that a plan for permanence must always be considered at the second review (4 months following admission to Care). The review must consider any action necessary to provide permanence for the child and address the question of on-going contact with people who have parental responsibility for the child and significant others.
Special Guardianship as an outcome for a Child in Care must also be approved by the Head of Service (Localities) who is responsible for that child.
Practice Guidance on Special Guardianship (Family Justice Council, June 2020) notes that where there are safeguarding or welfare concerns about a child, the statutory guidance is clear about the importance of local authorities engaging with the parents and the wider family network at an early stage through a Family Group Conference; the FGC should be used to share information, resolve possible disputes and conflicts with the local authority and to address long - standing tensions within the family. The pre-proceedings phase of the Public Law Outline (PLO) provides an important opportunity to engage the parents and family members in discussions about the future care of the child.
In assessing the appropriateness of any potential applicants, the local authority must assess whether any option would not be consistent with the child’s welfare, or, would not be reasonably practicable.
(Note: it may be the case that applicants are identified, or come forward, late in proceedings, and the court will need to give careful consideration with regard to an extension of the 26-week timescale).
Assessments should be robust, evidence-based and child-focused. Before the assessment, the prospective carers should be provided with full information about:
- What the assessment will involve;
- The time and commitment needed from them;
- A letter should be sent explaining the expectations of the carers and what they should think about during the process.
The assessment should carefully balance the strengths families may have: consider any existing relationships they have with the child; explore their parenting experience; the significance for the child of remaining within their family and network, against the carers' capacity to meet the assessed needs and the challenges that a particular child may bring on a long-term basis, (including any additional needs as a result of significant harm or neglect they may have experienced), and until their 18th birthday.
In recognising that each situation will be looked at on a case-by-case basis, an interim placement with the proposed special guardians may be appropriately considered to both establish relationships between the child and special guardians and confirm the applicants’ ability to carry out their parenting responsibilities, meet the needs of the child and promote their welfare and best interests.
The child's Looked After Review should make a recommendation regarding the outcome of the Care proceedings for the child's Care Plan and this should be approved by the Designated Manager (Special Guardianship).
Final recommendations should not be made until the essential tasks and activities for a full Special Guardianship Order assessment are completed.
A Supervision Order should not be sought as a means to ensure support and services are provided by the local authority (or as a form of ‘safety net’ for a child). Where considered necessary, the report should detail the reasons why such an Order is required.
The prospective carers should have time to read the assessment report before it is filed and comment on the report.
Following the filing of the report, the prospective carers should be given the opportunity to seek independent advice and legal advice to understand fully the implications of any Orders made and if need be, make applications of their own.
A Special Guardianship Support Plan will need to be provided around the time of filing the Special Guardianship Order report and its recommendation, detailing the support to be provided to the carers and the child and include contact for the child with their birth parents. The potential applicants should be able to seek legal advice about the Support Plan.
8. Referral from Local Authority Foster Carer - Applying without the Support of Local Authority
This type of non-agency application should be a rare occurrence, as efforts should be made to encourage foster carers to work in partnership with the Department in order to meet the needs of the child. In circumstances such as this, an independent worker will be appointed to complete the assessment.
Financial support in such circumstances will be subject to means testing.
In this situation, foster carers who have had the care of a child for a year can apply for a Special Guardianship Order, once they have given 3 months notice of their intention to do so.
9. Report for the Court – Schedule 21
After 3 months has elapsed from the notice of intention to apply for a Special Guardianship Order, the application can be made. Where an application is lodged during proceedings, the time limit for the completion of the report will be set by Court. The time limit for completion of the reports in all other cases will be set at the first hearing of the application.
The Social Worker or Social Workers preparing the Court report should be suitably qualified and experienced. All assessments/suitability reports must comply with the schedule set out in regulation 21 of the Special Guardianship Regulations 2005 (as amended 2016). See: Court Reports in Placement Order Applications and Adoption/Special Guardianship Guidance, Special Guardianship - Matters to be Dealt with in Report for the Court.
(Where local authorities commission assessments from independent social workers, it is essential that there is clarity about the standard of the assessment commissioned before it is filed).
The information required for a Local Authority report is the same for all Special Guardianship Order applications (whether the application is made as a result of a recommendation at a Looked After Review or whether the court has asked the Local Authority to prepare a report during proceedings). Where comprehensive assessments have already been completed during proceedings, legal advice may be sought as to what use can be made of them as a substitute for the Schedule 21 report.
Schedule 21 is lengthy and the details required are prescriptive. The report must be completed in conjunction with a Supervising Social Worker. The child's Social Worker will complete the sections on the child and birth family and the Supervising Social Worker on the carer.
Written information should be sent to the prospective Guardian and to the parents of the child outlining the steps the Local Authority proposes to take in preparing a report. It should include information about support services and an assessment of support needs.
Once completed, the Court Report should be submitted by the author(s) to their line manager(s) for approval. 4 copies are required for Court.
If a report is requested by the Court during care proceedings, the manager for the child should contact the Adoption Manager and provide them with the details.
See Court Reports in Adoption/Special Guardianship for what is required to be included in the report.
10. Discharge or Variation of a Special Guardianship Order
A Special Guardianship Order can be varied or discharged on the application of:
- The Special Guardian (or any of them if there is more than one);
- Any parent or Guardian of the child concerned;
- The child;
- The Local Authority designated in a Care Order;
- Anyone in whose favour a Child Arrangements Order is in force with respect of the child;
- Anyone who immediately before the making of a Special Guardianship Order had parental responsibility for the child.
The following require leave of the Court:
- The Child;
- The child's parents or guardians;
- Any step parent who has acquired but not lost parental responsibility;
- Anyone who had parental responsibility immediately before the Special Guardianship Order was made but now no longer does so.
Where the applicant for leave is a child, the Court may only grant the child leave to apply if it is satisfied the child is of sufficient age and understanding. Where the applicant for leave is not a child, the Court may only grant leave if there has been a significant change in circumstances since the Special Guardianship Order was made.
The Court may in any family proceedings in which a question arises about the welfare of a child who is subject to a Special Guardianship Order, vary or discharge the Order and even in the absence of an application.
11. Entitlement to Leaving Care Services
Section 24(2) of the Children Act 1989 defines the persons qualifying for advice and assistance and includes a person who has reached the age of 16 but is not yet 21 and with respect of whom there is in force a Special Guardianship Order (or there was at the point the child turned 18) and who was looked after immediately before the making of a Special Guardianship Order. If those criteria are met, the child is a "Qualifying Child" within the meaning of the Act.
A 'Qualifying Child' does not however have a right to the same support as 'Relevant', 'Former Relevant' or 'Eligible' children.
The Local Authority who looked after the child prior to the granting of the Special Guardianship Order is responsible for aftercare support, however it may be more appropriate for the young person to seek support where they now live.
12. Special Guardianship Support
12.1 Legal Context for Payments and Support
Each Local Authority must make arrangements for the provision within its area for a range of Special Guardianship support services. However, as with all children deemed 'in need' under Section 17, Children Act 1989, support services should not be seen in isolation from mainstream services and it is important to ensure that families are assisted in accessing mainstream services and are aware of their entitlements to tax credits and social security benefits in addition to what services might otherwise be offered. Additionally, targeted services (e.g. within education or youth provision) should also be considered where appropriate.
In addition to the support provided by Local Authorities, the Adoption Support Fund in England also covers therapeutic support for children, living in England, who were previously in care immediately before the making of a Special Guardianship Order.
Based on the assessment of needs, Local Authorities can apply for funding from the Adoption Support Fund.
From 1 September 2021, the School Admissions Code provides that children being raised by family and friends carers under a Special Guardianship Order or Child Arrangements Order, who struggle to get a school place during the year, will be supported in finding one.
Derbyshire County Council aims to promote the welfare and improve the outcomes for children and young people who, because they are unable to live with their parents, are being brought up by members of their extended families, friends or other people who are connected with them.
Derbyshire County Council is committed to supporting family/friend carers in a variety of ways.
The majority of children and young people can and will have their needs met using universal and targeted services. The Special Guardianship Order Allowance scheme recognises that some children and their prospective or actual permanent carers will have other needs and may have additional needs arising from their individual circumstances. Therefore the scheme exists to provide essential support to underpin arrangements for children and young people who are placed with Special Guardians. Special Guardianship support could for example include:
- Financial support (see Section 13, Financial Support);
- Services to enable children, Special Guardians and parents to discuss matters relating to special guardianship;
- Assistance including mediation in relation to contact between the child and their parents, relatives or significant others;
- Therapeutic services for the child;
- Assistance to ensure continuance of the relationship between the child and the Special Guardian, including training to meet any special needs of the child, short break care, and mediation;
- Counselling, advice and information;
- If short break care is provided as part of a support package, the child would need to become 'Looked After' for the duration of the placement.
Special Guardianship Support Plans will be subject to the agreement of the Head of Service (Localities) responsible for that child if the child was previously looked after.
The services described above may include cash assistance.
If the child was not previously looked after, any proposed support plan which includes financial allowances must be agreed by the Head of Service.
12.3 Who is Responsible for Providing Support?
Where the child was previously 'Looked After', the Local Authority that looked after the child has responsibility for providing support for the first 3 years after the making of a Special Guardianship Order. Thereafter, the Local Authority where the Special Guardian lives will be responsible for the provision of any support required and should be notified in writing of the move if known.
If a child was not 'Looked After', the Local Authority where the Special Guardian lives has the responsibility for providing support.
If support is requested, the assessment for that support should be undertaken by a Children and Families Team in the relevant Locality Office.
However, on-going financial support which has been agreed before the Special Guardianship Order is made is the responsibility of the Local Authority that agreed it.
Where the child is Looked After or was Looked After immediately prior to the making of the Special Guardianship Order, the following people MUST receive an assessment at their request:
- The child;
- The Special Guardian or prospective Special Guardian;
- A parent (but only in relation to their need for support with contact and/or discussion groups).
Where the child is not 'Looked After' or was not 'Looked After' immediately prior to the making of the Special Guardianship Order, anyone MAY be offered an assessment of their need for Special Guardianship support services but the following are particularly relevant:
- A child with respect of whom a Special Guardianship Order is in force;
- The Special Guardian or prospective Special Guardian;
- A parent;
- Any person with a significant ongoing relationship with the child.
If a Local Authority receives a request from a person whom it has a discretion to assess but decides not to carry out an assessment, it must notify the person requesting the assessment that an assessment will not be undertaken and why it will not be undertaken so that the person requesting the assessment can decide whether to make additional representations.
The level and extent of support should usually be established by undertaking a formal assessment at the point of completion of the Court report (or post order if a Special Guardian has requested an assessment). The report will need to consider the child's needs and the needs of the prospective Special Guardian, including financial needs.
The assessment should include the following:
- The developmental needs of the child;
- The child's educational needs;
- The parenting capacity of the Special Guardian to meet the child's needs;
- Family and environmental factors that have shaped the life of the child and the capacity of the Special Guardian or prospective Special Guardian to respond to those experiences;
- Comment on how life with the Special Guardian might be for the child;
- Any previous assessment of the child or Special Guardian that is relevant;
- The needs of the Special Guardian or prospective Special Guardian and their family;
- The impact of the Special Guardianship Order on the relationship between the child, parent and Special Guardian.
At the end of the assessment and once the necessary approval has been obtained, the Social Worker must inform the person requesting provision of its outcome, including:
- Information about the outcome of the assessment and the reasons for it;
- Where it relates to financial support, the basis on which this is determined;
- The services (if any) that the Local Authority proposes to provide to help to meet the child's needs;
- If financial support is to be paid, the amount and conditions attached.
Where an assessment identifies the need for on-going support services, a Special Guardianship Support Plan (see the Documents Library for further details) must be completed. If a need for ongoing support is not identified, this should be recorded on the child's electronic record and the family should be informed in writing.
Other agencies, such as education and health, may need to be consulted about the contents of the Plan.
As a Previously Looked After Child, the child subject to a Special Guardianship Order will be entitled to additional education support. This will be accessed through the designated teacher in the child's school. For further information, please see Education of Looked After and Previously Looked After Children Procedure.
The Plan should be written in such a way that everyone affected can understand and set out:
- The services to be provided;
- The objectives and criteria for success;
- Timescales for provision;
- Procedures for review;
- A named person to monitor the provision of services in accordance with the Plan.
Once the necessary approval has been obtained, the Social Worker must send the proposed plan to the person requesting support. A period of 28 days should be allowed for that person to make representations about the proposed plan. The Social Worker should also give information to the person concerned about who to contact to obtain independent advice and/or advocacy.
Where representations are received, they should be referred to the relevant Head of Service (Localities) to decide whether the support plan should be amended or confirmed. The allocated Social Worker must then write to the person concerned setting out the final plan.
Special Guardianship Support Plans must be reviewed taking into account the following:
- Any change of circumstances affecting the support;
- At whichever stage of implementation of the plan is considered most appropriate;
- In any event at least annually with regards to any financial payments made.
The reviews may be a paper exercise where there is no change or a minor change in circumstances. However, if there is a substantial change of circumstances (e.g. a serious change in the behaviour of the child) it would normally be necessary to conduct a new assessment of needs.
Any change to the Special Guardianship Support Plan will be subject to the approval of the relevant Manager. Local arrangements will determine whether any additional approval is required for changes to financial support.
If the Local Authority decides to vary or terminate the provision of support after the review, notice in writing must be given and the person concerned should be given 28 days to make representations.
13. Financial Support
Government is clear that Special Guardianship arrangements should not fail just because of financial problems. Financial support should be paid to help secure a suitable arrangement where this is not possible because of a financial obstacle.
Each case must be assessed on its own facts. It would not be lawful, for example, to pay a flat rate to all Special Guardians, or a fixed percentage of fostering allowance.
The general principle should be that where a person is seeking to make a permanent and substantial commitment towards a child by means of a Special Guardianship Order, this commitment by the individual should generally include a willingness to meet costs associated with such a commitment. It is recognised however that in some circumstances and for children with whom the Local Authority have been actively involved, financial support may be required to enable permanence plans outside of Local Authority Care to be made.
In formulating this Policy due consideration has also been given to the responsibilities, roles and duties underpinning the respective orders and arrangements.
A Special Guardianship Order Allowance is set at the equivalent of the National Minimum Fostering allowance for a child of that age. It reflects the fact that the parental responsibility held by the Special Guardian can be exercised to the exclusion of any other parental responsibility holder. They are therefore ultimately responsible for all decision making relating to the child with only some limited statutory exclusions (see Section 4, Parental Responsibility). The greater statutory weight of the Special Guardianship Order is also reflected in the more rigorous assessment process which a prospective Special Guardian must undertake and which looks at not only short term issues but also long term issues to ensure (as best can be ensured) that the need for permanency is likely to be met by the placement:
- The amount of the Special Guardianship Order Allowance (See Regulations 6 & 7, The Special Guardianship Regulations 2005) does not include any reward element and is generally means tested and takes into account the financial resources of the Special Guardians (including any financial benefit arising from the placement of the child e.g. child benefit, tax credit or any benefit which has been or can be claimed for that child). Derbyshire County Council uses the Department for Education and Skills recommended standardised means test model.
However, the application of the means test is not an end to the assessment. The assessment has to take account of the financial needs/resources of the child (if any) excluding mobility/attendance allowance/benefits related to disability. Also, the maximum payment under the National Minimum Fostering Allowance can be used as a basis for any means test. The assessment is to be reviewed annually to determine that the allowance is still appropriate and consistent with legislation and departmental policy. A higher allowance can also be paid in special circumstances, subject to assessment and the approval of the Head of Service.
The payment of a Special Guardianship Allowance may affect receipt of benefits and advice should be sought of the appropriate Benefit Agency.
However, it is not the function of the Derbyshire County Council to accept responsibility for income maintenance.
Help in determining eligibility to benefits can be provided by:
Derbyshire's Welfare Rights Service who can be contacted on 01629 531535 Monday to Friday 11.00 am to 4.30pm.
The Local Authority must also take account of any other grant, benefit, allowance or resource available to the person in respect of their needs as a result of becoming a Special Guardian of a child. Financial support ought not to duplicate any other payment available to the Special Guardian.
The Special Guardian will be asked to complete a Financial Assessment Form, which when completed should be passed to the Children's Services Placements Finance Team. It is responsible for carrying out means assessments.
Means may be disregarded in relation to:
- The initial costs of accommodating a child who has been 'Looked After';
- Recurring travel costs in contact arrangements;
- When cash is provided as part of a service rather than as part of financial support e.g. to provide a babysitter;
- Any special case requiring greater expenditure due to illness, disability, emotional or behavioural difficulties or the consequences of the past abuse or neglect of a child previously looked after;
- The only circumstance when the Local Authority MUST disregard means is when providing financial support in respect of legal costs (including fees payable to a court in respect of a child who is 'Looked After' where the Local Authority support the making of the Special Guardianship Order).
13.1 Eligibility to Assessment for a Special Guardianship Order Allowance
Ordinarily, one of the following criteria must usually be met before Derbyshire County Council will consider undertaking an assessment for a Special Guardianship Order Allowance:
- That immediately prior to the Special Guardianship Order being made, the child/children were 'Looked After' by the Local Authority for a period of at least 3 months and the Special Guardianship Order application is part of their Care Plan and has been confirmed with the Independent Reviewing Officer through the review process;
- The child/children are subject to a Special Guardianship Order as part of a disposal of Care Proceedings or as a direct alternative to care proceedings, whether or not the child/children were 'Looked After' by the Local Authority for a period of at least 3 months;
- Where following an assessment of the circumstances of the child and carer, the Head of Service agrees that the case is exceptional and the Local Authority supports the placement of the child with the person(s) taking the Special Guardianship Order.
The applicant must however live within the United Kingdom.
Please note: If Derbyshire County Council opposes the Special Guardianship Order application but the applicant is successful in their application, the Local Authority will assess the applicant for eligibility of the allowance as if they had been in support of the Order.
13.2 Discretionary Payments
The Local Authority will consider a settling in payment and/or 'one off' payments under Section 17, for carers with a Special Guardianship Order who are experiencing financial problems. These discretionary payments can be considered whether the applicant would or would not be eligible for Special Guardianship Order Allowances. Eligibility for these Section 17 payments will be decided by the relevant Head of Service (Localities) applying the relevant statutory criteria under the Act.
Once the means assessment has been carried out, the Children's Services Placements Finance Team should send written notification of the outcome to the relevant Social Worker, who must present this to the Head of Service for approval.
For new cases, payment commences as from the date of the Special Guardianship Order. In other circumstances, it is from the date payments are approved. The Finance Team should then write to the Special Guardian setting out the amount of financial support agreed by the Head of Service and information in relation to the following:
- Whether financial support is to be paid in regular instalments and if so, the frequency of payment;
- The amount of financial support;
- The period for which the financial support is to be paid;
- When payment will commence;
- Conditions for continuing payment and date by which conditions are to be met, i.e. returning Review Forms;
- Arrangements and procedure for review and termination.
A copy of this letter should be sent to the Children's Services Placements Finance Team.
Where Special Guardians are in receipt of financial support, the Finance Team will write annually to them with a Financial Assessment Review Form to be completed, together with a request for information about any change in circumstances for the Special Guardian or the child. The case will remain open to the Council to deliver financial support. The plan would be a Child in Need Plan with the only need identified being the financial need and the service provided to meet this need would be "Special Guardianship Order - Financial Support".
The Plan is recorded by the Social Worker before their involvement is completed. The Locality Office is responsible for supporting the Children's Services Placements Finance Team with information for the annual reviews where necessary. For the first annual review this will usually be the previous Social Worker. For any future reviews, the Locality Duty Service will assist. The reviews may be a paper exercise where there is no change or a minor change in circumstances. However, if there is a substantial change of circumstances, e.g. a serious change in the behaviour of the child, it would normally be necessary to conduct a new assessment of needs.
The allowance is reviewed annually and this is to:
- Establish that the child or young person continues to meet the requirements for an allowance and determine if the child or young person's needs have changed;
- Complete a financial review;
- Determine that the allowance is still appropriate and consistent with legislation and departmental policy.
When a review is due, a Financial Assessment Review form will be generated by the Children's Services Placements Finance Team (regulated services) for completion by the carer. The team will review cases on an annual basis and will record any changes and outcomes onto the electronic record as a financial review. The carers will be required to complete an allowance review questionnaire. This will include entitlements to child benefit and tax credits.
In order for allowances to continue up to 18 years of age, Derbyshire County Council will need to confirm that the young person:
- Continues to reside full time in the care of the Special Guardian;
- Is not in receipt of any benefits other than specific grants to support training/education in their own right but in this respect, an exception can be considered if the young person's circumstances are exceptional;
- And in addition that the financial circumstances of the carers in receipt of the allowance remain unchanged.
If an overpayment has been made (for example because it is found that the child is no longer resident or for any other reason), the Local Authority will recover the overpayment.
The Special Guardianship Order Allowance will change as the child or young person moves into the next age band as set out in fostering allowances or the child or young person's needs change.
Payment of the Special Guardianship Order Allowance will automatically end when:
- The child ceases to live with the Special Guardian (if they do so prior to attaining the age of 18;
- Reaches 18 years of age.
If any change in financial support is considered appropriate, the recommended change should be forwarded to the Head of Service for a decision. Where a change is approved, the Special Guardian should be notified in writing of the proposed change, together with the reasons for the change and the Special Guardian must be given the opportunity to make representations.
Where Special Guardians do not return the Assessment Review Forms within the required timescale, a reminder letter should be sent, giving 28 days notice of the suspension of payments if the information requested is not received.
The Special Guardianship Order Allowance is only payable in respect of the child who is subject to a Special Guardianship Order and who is resident with the person named in the order.
Those in receipt of allowances are to agree that they will inform Derbyshire County Council immediately of any significant changes in the family involving the carers themselves, their children and the child/children subject to the Special Guardianship Order.
Where information has been given orally, the carers must confirm the information in writing within 7 days.
Derbyshire must be informed of the following:
- The child ceases to have a home with the person who holds the Order;
- The child ceases full time education or training and commences employment;
- The child qualifies for welfare benefits in their own right;
- Change of address;
- The child dies;
- There is a change in financial circumstances or the financial needs or resources of the child and/or the carer which may affect the amount of financial support payable to the carer.
The Locality Office must notify the Children's Services Finance Team if they are informed of a change of address for the family to ensure that payment is sent to the correct address. They must also notify the Children's Services Finance Team if they are made aware that the arrangement has ended and the child is no longer living with the Guardian, so that payments can be stopped.
The Children's Services Finance Team must make a referral to Call Derbyshire if they receive information from the Guardian that raises concern about the child's welfare or if the Guardian fails to return the annual financial review form after the second reminder has been sent. Many of the children subject to a Special Guardianship Order are unable to live with their parents due to child protection concerns, it is therefore important that Call Derbyshire make the relevant locality aware if the child is no longer living with their Guardian.
14. Where the Special Guardian was Previously the Child's Foster Carer
Financial support does not ordinarily include the payment of remuneration to the Special Guardian for the care of the child. However, Regulation 7 of the Special Guardianship Regulations 2005 provides however 'that where the Special Guardian previously fostered the child and they received an element of remuneration in the financial support paid to them, that the Local Authority may continue to pay that element of remuneration for 2 years from the date of the Special Guardianship Order or longer if the Local Authority considers it appropriate'.
If financial support is requested by a former foster carer, Derbyshire County Council will determine the level of payment required (after deduction of income from universal or specific benefits) to initially maintain the fostering allowance at the rate received previously or otherwise agreed. If required, this payment might continue for the duration of the order. This additional element of support is not means tested and will rise in line with the annual increase in fostering allowances.
Christmas, birthday and holiday allowances will continue to be paid for 2 years following the granting of the Order. Where these have been agreed prior to introduction of these revised procedures and 2 years have already passed, save in the case of exceptional hardship, they will continue to be paid up until the next annual review.
Any enhancements that had been paid through Derbyshire's Children First Scheme (disability) in relation to a child's additional or specific needs will be paid for a transitional period of 2 years under Regulation 7, The Special Guardianship Regulations 2005 and will then be reviewed to determine whether the additional support is still required. In the case of the Foster Plus Scheme, payments will usually reduce over the 2 year period in order to assist the former foster carers to make the financial adjustment from fostering to the new legal status.
At the end of the 2 year period and following review by the child's Locality office, a decision will be made whether to continue enhanced payments, reduce them or cease payments. Payment of any on-going additional allowance beyond 2 years would need to be justifiable and reviewed annually to ensure that it remains appropriate. Professional advice may be sought to ascertain whether or not the exceptional circumstances continue to exist and whether the specific needs require additional financial support.
If the applicant is a foster carer from an independent fostering agency, the above would still apply unless a separate agreement is reached via a formal contracting process and through Cabinet approval.
Before any changes are made, the former foster carer must be given the opportunity to make representations.
15. Urgent Cases
Where a person has an urgent need of a service, the assessment process should not delay provision and arrangements can be made for support to be provided as a matter of urgency in appropriate cases. The Local Authority will need to review the provision as soon as possible after the support has been provided in accordance with the procedures set out above.
16. Special Guardianship Orders in International Cases
Identifying potential long-term carers for the child within the family may include those who are either resident in, or nationals in, overseas countries. Special guardianship can be considered in placing a child outside of the jurisdiction. Consideration must be given to how assessments are carried out in a legally compliant and culturally relevant manner. Thought should be given to:
- The status of special guardianship in that country and other legal matters;
- The relevant matters associated with the care of children in that country: permanent, stable and secure family life; safeguarding; education and health; and specifically how all of these relate to the personal living circumstances of the host family and their need for support services, including financial and therapeutic support and contact between family members including those resident in the UK;
- Contacting local agencies in that country for guidance on the support that maybe offered.
In advance of the child being placed, a plan will need to be agreed about how the placement will be supported and what the contingency arrangements are for the child.
- Contracting states to the 1996 Hague Convention will be better placed to offer co-operation and support than some other countries (see HCCH);
- Social workers should carefully explore the local authority's ability to provide financial support particularly after an initial 3 years. when 'out-of-area placements' are abroad.
See also: Children and Families Across Borders (CFAB).
17. Special Guardian Duty on the Death of the Child
If the child with respect to whom a Special Guardianship Order is in force dies, the Special Guardian must take reasonable steps to give notice of that fact to:
- Each parent of the child with Parental Responsibility; and
- Each guardian of the child.
Appendix 1: Good Practice: Getting it Right First Time
The following suggested good practice is taken from the Local Government and Social Care Ombudsman report Firm Foundations: Complaints about Council Support and Advice for Special Guardians (May 2018).
The following is not an exhaustive list but sets out some of the positive steps councils can take:
- Give early, clear and unambiguous advice to people who are considering becoming special guardians. Consider how this can:
- Explain what is special guardianship and what this means for parental responsibility, legal security and stability;
- Explain the council's role and that of the court;
- Set out who can apply to be a special guardian and what alternatives could be more suitable;
- Make the process of applying to be a special guardian clear, including the role of the council in writing a report to court;
- Explain the assessment process before becoming a special guardian. Explain that applicants may need to complete some training.
- Be as clear as possible about the support that might be available and how the council will assess the applicant's support needs;
- Be as unambiguous as possible about the fixed term duration of support and what it is likely to be used for;
- Back up verbal advice and guidance in writing wherever possible, particularly where this may have long term consequences;
- Manage expectations early on, for example where special guardians expect ongoing support or help with major personal expenditure;
- Be as clear as possible with applicants that any support may be time limited;
- Develop advice for social workers involved in supporting potential and actual special guardians. This could include:
- A flowchart showing responsibilities at key stages such as suitability assessment, financial assessment, permanence panel and court;
- A checklist of things to cover at first assessment visit (for example explaining the process and financial situation);
- A summary of the SGO assessment process including child information (for example attachment issues and any early neglect or trauma), carers information (for example current relationship and stability).
- Keep clear and transparent records of contact with special guardians. This is always important, particularly where guardians will probably be supported by several different social workers and other officers over several years;
- Write support plans that are clear, in plain English and set actions that are as specific, measurable and achievable as possible so the council and guardian can review progress;
- Make sure support plans:
- Are shared, discussed and agreed with special guardians, and this is well documented;
- Are written so that they are easy to evaluate and keep under review. It should be easy for the council and guardian to decide whether all the support has been provided;
- Are regularly reviewed and kept up to date. Make sure plans continue to meet the child's needs as they change;
- Set out the approach to calculating special guardianship allowance. Explain this at the earliest stage as possible, making clear this will be reviewed and depend on evidence of continuing needs;
- Keep the best interests of the child at the forefront of decision making.