Special Guardianship and Kinship care

A Special Guardianship Order is an order made by the Family Court that places a child or young person to live with someone other than their parents on a long-term basis. Available since 2002, they have proven popular and effective at providing children with the security of a long-term placement with a relative like a grandparent or aunt or uncle, or in certain situations, family friends or previous foster carers. Without Special Guardianship Orders, the child may otherwise have been adopted, or made subject to a final care order and placed into Local Authority foster care..

A Kinship Carer is someone who looks after a family member/family friends. If you are caring for a child and think that you may be a kinship carer, then it may be appropriate for you to become a Special Guardian.

Who can be a Special Guardian?

• You must be 18 years of age or over and you must not be the child’s parent. Joint applications may be made and there is no requirement for the joint applicants to be married.
• The child may already live with you under a Child Arrangements Order.
• You are a relative, and the child has lived with you for the last year under a private family arrangement.
• The child may have been placed with you by the Local Authority Social Services.
• The child may have lived with you for a period of 3 out of the last 5 years.
• You may be a Local Authority foster carer with whom the child has lived with for at least one year.
• If none of the above apply, you may still apply for a Special Guardianship Order, with permission of those who have PR in respect of the child, or the Court.

Benefits of a Special Guardianship Order

• It gives the Special Guardian Parental Responsibility and entitles them to exercise that Parental Responsibility. The child’s parents will continue to have parental responsibility, but the parental responsibility of the Special Guardian will take priority. So, if there is a disagreement between parents and the Special Guardian relating to the child, the Special Guardian will have the final say for example, around what school the child would attend.

• If the parents are unhappy with any decision taken by the Special Guardians, the parents would need to refer the matter to Court for Specific Issue or Prohibited Steps Order.

• A Special Guardian can take the child out of the country for a period of up to three months without the consent of others with parental responsibility.

• Special Guardianship Orders last until a child reaches the age of 18.

• Local Authorities are required to assess and review what support provisions should be available to Special Guardianship. These may include financial support, counselling, advice, mediation, therapeutic services, information, and other services as are prescribed in the Regulations.

• A Special Guardianship Order gives the child more stability and security than a Child Arrangement Order.

• A Special Guardianship does not remove Parental Responsibility from the parents and therefore allows the child to maintain a link with their parents, whereas adoption does not usually allow for the link with birth parents to be maintained.

• Further, some older children feel like they face a stigma when growing up in Local Authority care, and a Special Guardianship Order placing them with a family member or friend means that the child will not be subject to regular medicals and statutory visits like they would be if they were in foster care.

If the child has been subject to an interim care order or full care order, social services departments will usually pay for a prospective special guardian who has been positively assessed to have legal advice. Such funding is typically limited to about two hours' work at legal aid rates, or up to a total of £250 plus VAT. This funding is offered to help ensure that the prospective kinship carer understands the nature of the proposed order, to advise on the proposed support plan and recommendations for contact.

Legal aid may also be available for prospective special guardians where the application is heard within public family law proceedings, subject to means and merits tests. Special Guardianship Orders in private family law proceedings will very shortly be brought within the scope of means and merits tested legal aid. Legal aid/help with funding legal fees is therefore often available for prospective special guardians and access to legal aid will be made easier for special guardians shortly. MSB solicitors are happy to answer any questions in respect of eligibility for legal aid/funding.

Whether a Special Guardianship Order is the right order to make for a child depends on the circumstances of each case. If you have any questions about Special Guardianship Orders or legal aid and are an aunty, uncle, sibling, grandmother, grandfather or kinship carer and want to find out about how to secure a child’s long term placement in your care, our specialist family team at MSB are available to assist and guide you further. Get in touch with amelia-jadethompson@msbsolicitors.co.uk.