3.2.1 Applications for Special Guardianship

AMENDMENTS

This chapter was reviewed in October 2011 and should be read in its entirety.

Introduction
Who May Apply for a Special Guardianship Order
Parental Responsibility
Specific Procedures for Special Guardianship Assessment for Children who are the Subject of Care Proceedings / Where the Child is Looked After by the Local Authority / Where the Local Authority is Involved with the Child
Specific Procedures for Special Guardianship Assessment for Children who have never been Known to the Local Authority Prior to the Application for the Order - i.e. Private Applications
Discharge of a Special Guardianship Order

Appendix 1: A Guide to Special Guardianship

Appendix 2: Assessment of Family and Friends (Kinship) Carers - Family Rights Group

Appendix 3: Options for Kinship Carers - BAAF

Appendix 4: A Guide to Adoption

Appendix 5: Referral Form for Assessment and Consent to Checks

Appendix 6: Proforma for Viability Reports

Appendix 7: Proforma for Letter to GP where the Child is LAC

Appendix 8: Proforma for Letter to GP in Private Applications

Appendix 9: Proforma for Covering Letter to the Agency Health Advisor

Appendix 10: Proforma for Referee Letters and Written References

Appendix 11: Financial Assessment Pack

Appendix 12: Proforma for Regulation 21 Report

Appendix 13: Proforma for Special Guardianship Support Plan

1. Introduction

Special Guardianship offers a further option for children needing permanent care outside their birth family. Special Guardianship is a legal status that can offer greater security without absolute severance from the birth family as in adoption.

Special Guardianship was included in the Adoption and Children Act 2002 to secure the placements of older children who need a sense of stability and security, but who do not wish to make the absolute legal break from their birth family that is associated with adoption. The order came into force in December 2005. This order in particular was devised in the interests of older children in permanent foster care. It was also devised in the interests of children needing permanency where adoption, for cultural or religious reasons, is not an option.

A Special Guardianship Order defers almost all parental responsibility to the person who is granted the order and therefore the special guardian takes over legal responsibility for the child from the birth parents and from the local authority and any other person who may have had Parental Responsibility for the child prior to the order being made and so, effectively becomes the child's parent.

2. Who May Apply for a Special Guardianship Order

Applications for Special Guardianship can be made by individuals or they may be joint applicants. In cases where there are joint applicants do not need to be married. Special Guardians must be 18 or over.

There are two main groups of applicants:

Those with a time established relationship
- Local authority foster carers with whom the child has lived for at least one year prior to the application for the order who have the consent of the local authority
- Anyone with whom the child has lived for three of the last 5 years
- Any person who holds a Residence Order for the child
- Any guardian of the child
Those without any established relationship with the child

This group of prospective special guardians may apply if it is agreed that the assessment of the applicant(s) is in the best interests of the child and applies:

When the child is looked after by the local authority and the local authority gives consent for the person to make an application and be assessed
When all those holding parental responsibility for the child consent to the application and assessment
To any person who has leave of the court to apply, including the child.

The birth parents of a child may not apply to become Special Guardians of their own children.

3. Parental Responsibility

When a Special Guardianship Order is made, the special guardian will acquire parental responsibility for the child until the child is aged 18. The special guardian will have the authority to exercise their parental responsibility to the exclusion of anyone else, except any person that may jointly hold the special guardianship order. All day to day decision making about the child's care falls to the responsibility of the special guardian. The birth parents lose their parental responsibility almost entirely. If the child was previously Looked After by the local authority, the special guardianship order will replace any Care Orders and the local authority will no longer hold any parental responsibility for the child.

There are only 5 things that the special guardian is not able to do without the consent of the birth parents and/or the court as follows:

Changing the child's name
Removing the child from the united Kingdom for longer than three months
Agreeing for a child to be placed for adoption or be adopted
Sterilisation of a child
Circumcision of a male child

4. Specific Procedures for Special Guardianship Assessment for Children who are the Subject of Care Proceedings / Where the Child is Looked After by the Local Authority / Where the Local Authority is Involved with the Child

All preparation work and exploration of alternative family members needs to be explored at the earliest opportunity. Ideally this will be done prior to an application for interim care orders are made to the court.

Although these assessments are called Kinship or FAMILY AND FRIENDS assessments, there is a restrictive definition of "friends". Also See Kinship Guidance.

For a "friend" to be considered as a permanent carer for the child, this person must have:

An established and significant relationship with the child or
Must have cared for the child for a considerable period

An assessment for "Family Permanence Placements".

At the point when the legal meeting stating intention to issue has taken place, a Family Group Conference/ family meeting should be called as soon as possible to determine whether any family member could potentially care for the child.

It is the responsibility of the child's social worker to arrange the Family Group Conference / family meeting and ensure that at that meeting, Special Guardianship, Kinship, Residence Orders and Adoption are explained and discussed and that family members are given pamphlets:

"A guide to Special Guardianship".
"Assessment of Family and Friends (Kinship) Carers" - Family Welfare Rights.
"Options for kinship carers - BAAF".
"A Guide to Adoption"

Following the Family Group Conference / family meeting, there should be one family member identified to be assessed (viability assessment) first. If a number of family members put themselves forward, they should be ordered by likelihood of being successful and there should be option 1, 2, 3 etc - unless otherwise directed by the court.

In cases where a child is placed with a foster carer who has expressed an interest in applying for Special Guardianship, it is the responsibility of the social worker for the child to ensure that the carer receives a copy of "A guide to special guardianship". It is the responsibility of the child's social worker to talk to the carer about special guardianship and what it will involve (in liaison with the special guardianship support worker if necessary).

All prospective carers being assessed must give their signed permission for all relevant checks including police, social services and health checks to be done and the social worker for the child must complete a referral form and send it to:

The Manager
Fostering Service
1st Floor Laurence House
1 Catford Road
London
SE6 4RU

Viability assessments will not commence until these forms have been completed and received.

Viability assessments will be allocated either within the fostering teams. It is advised that social workers do not agree to timescales or dates for filing in court until discussion has been held with the fostering services about the availability of staff to complete assessments and realistic timescales. A letter of instruction from court will also need to be sent to the fostering manager through legal before the assessment will start. The expected timescale for a viability to be completed (whether the case is in court or not is at least 6 weeks).

Viability Assessments

These are to be brief reports. The process of Special Guardianship/ residence Orders and Kinship Care should be explained again to the person being assessed and the assessor must ensure that the person being assessed is fully aware that the expectation is that they will be caring for the child for the duration of their childhood. In the viability stage, the right order FOR THE CHILD must be considered, not the right order for the family. Adoption of the child must also be considered - especially if the child is under 11 years and where there is a decision from panel that adoption is in the child's best interests. Part of the viability should explore management of contact and ability to deal with difficulties that may arise with birth parents in future. The Child's Social worker must be consulted about what the care plan for the child is as this will determine which order will be the most appropriate.

At the end of the viability assessment, the worker will need to give an opinion as to whether a fuller assessment should be undertaken and what issues need to be further explored.

If further assessment is needed, a further referral form or letter of instruction from the court should be sent to the fostering team manger to allocate the work.

Adoption Assessments

Research has shown that for children under the age of 5, adoption provides the most stable future for children who cannot remain with their birth parents - and that adoption outside of the birth family can be more stable than any kind of kinship placement. (Hunt 2005 - breakdown rates in under 5s).

For an adoption placement to be an agency placement, any family members wishing to adopt will need to go through the adoption assessment. Discussions will need to be held with the adoption team manager as soon as possible when this is being considered as the family member will need to attend adoption preparation training for 3 full days before their home study can be presented to panel.

Kinship Assessments

Where the plan for a looked after child is that they should move to live with a family member under Regulation 24, the child's social worker must discuss this as soon as possible with the fostering team manager. A joint visit including a fostering social worker and the child's social worker will need to take place. If a child is to remain in a Regulation 24 placement for longer than 16 weeks a full fostering assessment must be presented to panel for approval.

Please discuss all Kinship placements with the fostering team managers.

Special Guardianship Assessments

Where an SGO assessment is ordered by the court, a 12 week timescale for the assessment to be completed must be timetabled at court.

The following needs to be done as part of the assessment:

CRB Checks

These need to be completed on all adults in the household and forms should be completed at the viability stage. If the assessment progresses beyond viability, forms should be sent as soon as recommendation has been made for further assessment.

In cases where an Independent Social Worker is undertaking the assessment, it will be the responsibility of the child's social worker to ensure that CRB checks are done.

Health Checks

Applicants for Special Guardianship need to go for a health assessment at their GP. This will be the same process as per fostering and adoption health assessments. The assessing social worker is to send the Health assessment form and covering letter to the GP of the applicant. Payment for these medical checks will be met by the Local Authority if the child is a Looked After child and will come from the budget of the team that has case responsibility for the child.

Health assessments are returned to the assessing social worker or Fostering Business Support and then must be forwarded to the agency medical advisor to panel with a covering letter explaining the nature of the application and a brief history of the family. The panel heath advisor will then make comments and suggestions about the health of the applicants at panel.

Health issues must be flagged up at the viability stage so that medicals can be done early as there are health issues that will impact on the child being placed with the family.

In cases where there is an independent social worker assessing the family, it will be the responsibility of the child's social worker to ensure that the medicals are completed and that the agency medical advisor gives a view for panel.

Social Services Checks

Full SSD checks on all the applicants will need to be conducted via the fostering business support team. The BSOs will send out a letter requesting information which will be returned to the assessor asap.

In cases where an independent social worker is assessing the family, it will be the responsibility of the child's social worker to ensure that local authority checks are completed.

Referees Written References

Written references are required from three referees identified by the applicant. The assessor should get the information about the referees asap from the applicant and send a covering letter and reference questions to the referees.

In cases where there is an independent social worker assessing the family, it will be up to the child's social worker to ensure that the ISW has these forms to send to the referees.

Referees Interviews

Following receipt of the written references, the assessor must meet with the referees to interview them about their references. Notes of the interviews will need to be typed up and attached to the Special Guardianship report. The applicant for the Special Guardianship Order will not get to see the details of the references or who said what, but these may be anonymously quoted in the body of the report.

Financial Assessments

In cases where a child is a looked after child and in cases where a child is placed with someone who is making an application for an SGO to prevent the child from becoming looked after, a financial assessment pack must be sent out. The assessing social worker will need to consult the special guardianship support worker with regards to whether a financial pack can be sent.

The applicant must complete the financial assessment forms and return them with supporting evidence to the Adoption BSOs who then undertake a means test on the family to determine whether the family qualifies for a SG allowance.

If the family does qualify for an allowance, they will be written to with the amount of financial assistance that will be paid. They have to sign agreement to that amount and to the terms and conditions stated in the letter. Once this is done, they will receive their allowance from the date that the SGO is made. If the SGO is made prior to the child moving to live with the SG, payment will start on the day that the child moved to live with the SG.

It is the duty of the child's social worker to ensure that the Adoption BSOs are informed immediately that an SGO is made so that there is no delay in payments being made.

It is up to the assessing social worker to ensure that the applicants are aware of the following:
1. If the applicant is a foster carer or kinship carer and is receiving a fostering or kinship payment, they may be entitled to a transitional allowance for a period of 2 years. After two years, it will change to the SGO allowance amount. In some cases, this means that after a 2 year period, their payments will be less.
2. A means test is conducted on SGO allowances on an annual basis. Families with an SGO will be sent a new means test every year and as with the first one, will have to return the forms and evidence so that a means test can be re-done to see whether they still qualify for an allowance. They will then have to sign agreement to the amount and terms and conditions before payments can continue. Failure to provide the documentation for the annual means test will mean that their payments will stop. If payments are stopped and re-started at a later stage, there will be no back dated payments made.
3. In all cases, there is no guarantee that payments will continue every year and if the family does receive an income above the means tested level, they will not qualify for an allowance.
4. In cases where the applicant does receive an income and this is less than the means tested level, they will still receive an allowance, but Child Benefit will be deducted from that amount.
5. In cases where the applicant relies solely on benefits and has no other income, they will receive an allowance and child benefits will not be deducted.
6. In cases where payments are made, these could continue until the child is aged 18 as long as all the criteria and conditions are met for any payments to continue.
  
  Where there is an independent social worker assessing the family, it will be the responsibility of the child's social worker to ensure that the financial assessment is completed.
Regulation 21 Report

This is the report that is to be completed by the assessing social worker or independent social worker.

Special Guardianship Support Plans

In addition to completing the Regulation 21 report, a Special Guardianship Support plan also needs to be completed. The process for this is as follows:
1. The assessing social worker (or ISW) is to inform the child's social worker and special guardianship support worker by email that they have been allocated to undertake an assessment.
2. At least 2 weeks prior to the date the report is due to be filed, the assessor (or ISW) should arrange a three way meeting between the special guardianship support worker, the child's social worker and themselves to consider the Special Guardianship support plan.
3. At this meeting, the needs of the child, the special guardians, the birth parents, any siblings and other important family members or people in the child's life should be considered as well as what support will be required following the making of the Special Guardianship order to each of these people.
4. Following the meeting, the special guardianship support worker will complete the basis of the special guardianship plan to include any agreed financial support and all the usual services that will be available when the order is made.
5. This basic plan will then be sent to the child's social worker to complete with regards to any specific needs for the child in terms of health, education, therapy, contact etc - and the needs of the other parties, i.e. special guardians, birth family members and other important people in the child's life. The contents of the Special Guardianship plan in terms of these issues should be exactly the same as what will be written in the child's final care plan.
6. If there are any financial implications for services to be provided - e.g. taxis to contact / neutral venue for contact etc, these must be discussed with the Adoption Support Team Manager and agreement must be obtained before these services are included in the plan.
7. Once the plan has been completed, the assessing social worker or ISW must ensure that this is signed by the applicants, social workers and managers before this is presented to panel and filed with the court.
8. In cases where an independent social worker has been instructed, the letter of instruction should include the instruction that the ISW ensures that the procedures above for completing an SG Support plan are adhered to.
Panel

It is the responsibility of the assessing social worker to ensure that the case is booked onto Lewisham's Adoption and Permanence panel as soon as the assessment starts as the panels are often fully booked for months in advance. In the same way that the panel considers and approves adopters, they will be asked to consider Special Guardians and make recommendations. Adoption Team Managers need to be consulted about panel dates and dates for reports to be submitted for panel. The child's social worker and the assessing social worker must attend panel. The panel's recommendations and support plan should be filed with the Regulation 21 report at court.

In cases where there is an ISW doing the assessment, it will be the responsibility of the child's social worker to ensure that panel is booked and that the paperwork is submitted in time. The ISW will be required to attend the panel.

Case Responsibility

Case responsibility remains wholly with the child's social worker until the SGO is made. Once the court has granted the SGO, a handover meeting should be arranged by the child's social worker with the special guardianship support worker who will take over responsibility for the case at the handover meeting. It is the responsibility of the child's social worker to input the change of legal status onto ICS prior and ensure that the outstanding tasks on ICS are all completed.

5. Specific Procedures for Special Guardianship Assessment for Children who have never been known to the Local Authority Prior to the Application for the Order - i.e. Private Applications

These applications are usually received via Lewisham Legal Services. The applicants have to give the Local Authority 3 months written notice that they intend to apply for a Special Guardianship Order.

These cases are usually allocated by the fostering team managers in the fostering team. Once the case has been allocated, the social worker should meet with the applicant to discuss their options and give them the following information leaflets so that they are able to decide which orders are best suited to their circumstances:

"A guide to Special Guardianship"
"Options for Kinship Carers - BAAF"
"A Guide to Adoption"

The following needs to be done as part of the assessment:

Consent Forms

The assessing worker needs to ensure that the applicants complete consent forms to undertake police and social services checks.

CRB Checks

These need to be completed on all adults in the household.

Health Checks

Applicants for Special Guardianship need to go for a health assessment at their GP. This will be the same process as per fostering and adoption health assessments. The assessing social worker is to send the Health assessment form and covering letter to the GP of the applicant. Payment for these medical checks will be met by the applicants.

Health assessments are returned to the assessing social worker and then must be forwarded to the agency medical advisor to panel with a covering letter explaining the nature of the application and a brief history of the family. The panel heath advisor will then prepare a report and return it to the assessor.

Social Services Checks

Full SSD checks on all the applicants will need to be conducted via the fostering business support team. The assessor will need to obtain a history of addresses and request of the fostering and adoption BSOs to undertake Local Authority checks. The BSOs will send out a letter requesting information which will be returned to the assessor asap.

Referees Written References

Written references are required from three referees identified by the applicant. The assessor should get the information about the referees asap from the applicant and send a covering letter and reference questions to the referees.

Referees Interviews

Following receipt of the written references, the assessor must meet with the referees to interview them about their references. Notes of the interviews will need to be typed up and attached to the Special Guardianship report. The applicant for the Special Guardianship Order will not get to see the details of the references or who said what, but these may be anonymously quoted in the body of the report.

Financial Assessments

When an application is made in private proceedings and the child has never been LAC and there has never been involvement of social services - the applicants do not qualify for financial support. It will be up to the assessor to talk to the applicants about their finances in the assessment and ensure that they are claiming all their entitled benefits.

Regulation 21 Report

This is the report that is to be completed by the assessing social worker.

Special Guardianship Support Plans

In addition to completing the Regulation 21 report, a Special Guardianship Support plan also needs to be completed. The process for this is as follows:
1. The assessing social worker must inform the special guardianship support worker by email that they have been allocated to undertake an assessment in a private application.
2. At least 2 weeks prior to the date the report is due to be filed, the assessor should arrange a meeting with the special guardianship support worker to consider the Special Guardianship support plan.
3. At this meeting, the needs of the child, the special guardians, the birth parents, any siblings and other important family members or people in the child's life should be considered as well as what support will be required following the making of the Special Guardianship order to each of these people.
4. Following the meeting, the special guardianship support worker will complete the basis of the special guardianship plan to include all the usual services that will be available when the order is made.
5. This basic plan will then be sent to the assessing social worker to complete with regards to any specific needs for the child in terms of health, education, therapy, contact etc - and the needs of the other parties, i.e. special guardians, birth family members and other important people in the child's life.
6. Once the plan has been completed, the assessing social worker must ensure that this is signed by the applicants, social workers and managers before being filed with the court.
Panel

In cases where the child is not looked after, there is no requirement for the case to be presented to panel.

Case Responsibility

Once the SGO has been made, the assessing social worker must inform the special guardianship support worker to arrange a handover meeting for transfer of case responsibility.

6. Discharge of a Special Guardianship Order

A Special Guardianship Order can be varied or discharged on the application of:

The Special Guardian
The Local Authority in whose name a Care Order was in force before the Special Guardianship Order was made
Anyone with a Residence Order in respect of the child before the Special Guardianship Order was made
The following WITH LEAVE OF THE COURT:
- The child's parents or guardians
- Any step parent with parental responsibility
- Anyone who had parental responsibility immediately before the Special Guardianship Order was made
- The child (if the court is satisfied that the child has sufficient understanding)

Where the applicant is not the child and the leave of the court is required, the court may only grant leave if there have been significant changes 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 in the absence of an application.

Appendix 1: A Guide to Special Guardianship

Printed copies available from the Special Guardianship Support Worker

Appendix 2: Assessment of Family and Friends (Kinship) Carers - Family Rights Group

Who this Leaflet is For

This leaflet is for people who are caring for a child or children of a family member or friend, or who are thinking about offering a place in their home to such a child and are being assessed by a local authority social worker or other representative using the Family Rights Group's assessment form. This leaflet aims to answer some of the questions you may have.

Why do I have to be Assessed?

If you are the child's parents, or the child's parents have placed him or her with you as a private arrangement, and you are a close relative (in law this means the child's grandparents, aunt, uncle, brother or sister, or a step parent) then you do not need to be assessed.

However, in all other circumstances, if the child is living with you, or there are plans for the child to live with you, then the local authority is legally obliged to find out certain information about you. The local authority's duties vary according to the legal status of the child.

What is an Assessment?

An assessment is a mechanism for considering how you will be able to meet the needs of the child. It is an opportunity for you to think about what you may find difficult about looking after this child, and for you to let the local authority know what help you would need.

Issues the assessment will cover include:

The child's safety. Is there anybody who poses a threat to the child, and how would you protect the child?
The child's contact with his/her parents and other significant people (e.g. siblings, grandparents, friends). How can this take place in a way that is best for the child, beg how often, and where? Should there be an agreement about this?
Do you need anything to make your home suitable for the child to live in with you, beg stair gates, cot, bedroom furniture?
Are there any differences between you and the child in terms of ethnicity, language or religion? If so how would you meet the child's needs?
How would you support the child's development in other significant ways, such as promoting the child's health, education, emotional security, hobbies and activities?
What financial assistance do you need in order to be able to care for the child?
How will the child coming to live with you affect how other people in your household will feel e.g. your children?
Checks and references, including criminal record checks on everyone in the household aged over 16, a medical check by your GP, a health and safety check on your home, and personal references. Having a criminal record, or health problems, would not automatically rule you out of consideration, and every case will be considered on its own merits.
Enquiries will be made of other agencies, such as the local authority where you live, the probation service, the education department and the Department of Health Consultancy Index, which is a list of child care workers or former child care workers about whom concerns exist around their suitability to work in the child care field.

What is the Legal Status of the Child?

If you are unclear about the legal status of the child, you should ask the social worker to explain, since the assessment process and what support you and the child may receive, can depend upon the child's legal status.

If the child was placed with you by his or her parents, and you are not the child's grandparents, aunt, uncle, brother or sister or step parent, then you are privately fostering the child. In these circumstances the local authority should visit you regularly to check the care you are offering is suitable for the child.
If the child was placed with you by the local authority, either because the child is accommodated, or because the local authority has an order under the Children Act 1989, for example a Care Order, an Interim Care Order or an Emergency Protection Order then you are fostering the child. If you are not already an approved foster carer, then the social worker must interview you and inspect your home, and you will be asked to sign an agreement enabling the child to live with you for up to six weeks. If the child stays for longer than six weeks, then the local authority has to carry out an assessment. These arrangements are made under Regulation 38 of the Fostering Services Regulations 2002.
You may be considering applying for an order which would give you parental responsibility for the child, such as a Special Guardianship Order or a Residence Order. The local authority is required to carry out a full assessment that it will present for the court to consider, before the court would issue a Special Guardianship Order.

If you have any queries arising from this assessment, you should discuss them with the social worker doing the assessment. You can ask to see the local authority's policies on family and friends care (also known as kinship care) and what support packages they offer to family and friends carers.

If you are unhappy with the way the process is taking place, or with the way decisions are being made, then you can make a complaint to the local authority.

How can I get further Support and Advice?

There are a number of ways in which the local authority can support family members to plan for the child. Sometimes these services may be run by local voluntary organisations:

You can request that the local authority convene a Family Group Conference. This is a meeting at which you as a family can privately make your own plans for the care and protection of the children. The local authority should accept and help resource the plan if it sufficiently meets their concerns about the safety and care of the child. An independent co-ordinator helps the child, you as a family and any other significant adults in the child's life to prepare for the meeting.
You can ask for an advocate to help you to express your views at child protection conferences and reviews.
For independent practical and legal advice, you can phone the Family Rights Group's free helpline on 0800 731 1696.

Appendix 3: Options for Kinship Carers - BAAF

Booklet available from the fostering manager.

Appendix 4: A Guide to Adoption

Available from Adoption Social Workers.

Appendix 5: Referral Form for Assessment and Consent to Checks

Click here to view 'Application to be Assessed as a Potential Carer' form

Appendix 6: Proforma for Viability Reports

Click here to view 'Proforma for Viability Reports'

Appendix 7: Proforma for Letter to GP where the Child is LAC

Click here to view 'Proforma for Letter to GP where the Child is LAC'

Appendix 8: Proforma for Letter to GP in Private Applications

Click here to view 'Proforma for Letter to GP in Private Applications'

Appendix 9: Proforma for Covering Letter to the Agency Health Advisor

Click here to view 'Proforma for Covering Letter to the Agency Health Advisor'.

Appendix 10: Proforma for Referee Letters and Written References

Click here to view 'Proforma for Referee Letters and Written References'.

Appendix 11: Financial Assessment Pack

Available from the Adoption and Fostering BSOs

Appendix 12: Proforma for Regulation 21 Report

Click here to view 'Proforma for Regulation 21 Report'

Appendix 13: Proforma for Special Guardianship Support Plan

Click here to view 'Proforma for Special Guardianship Support Plan'

End