SCOPE OF THIS CHAPTER
RELATED NATIONAL GUIDANCE
This chapter was updated in December 2019 in line with the Children and Social Work Act 2017 and revised statutory guidance which require schools, through the designated teacher to provide support to Previously Looked After Children.A Previously Looked After Child is one who is no longer looked after in England and Wales because they are the subject of an Adoption, Special Guardianship or Child Arrangements Order which includes arrangements relating to with whom the child is to live, or when the child is to live with any person, or has been adopted from 'state care' outside England and Wales.
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:
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.
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 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.
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:
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.
The Court may make a Special Guardianship Order in any family proceedings concerning the welfare of the child. 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.
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 proposed contact arrangements and the support needs (See Section 12.5, Assessment for Support) of the child, parents and the prospective special guardian.
The assessment of the applicants should include their medical history, the references received and the Disclosure and Barring Service checks (DBS) and other statutory checks undertaken for the assessment.
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.
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.
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.
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.
A Special Guardianship Order can be varied or discharged on the application of:
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.
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.
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.
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:
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.
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:
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:
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:
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:
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:
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:
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.
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 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:
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:
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.
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:
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:
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:
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:
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 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.
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.
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.
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:
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:
Only valid for 48hrs