In the UK, around 180,000 children are currently being raised by family members in foster care because their parents are unable to care for them. Family caregivers are often the grandparents, but can include older siblings, aunts, uncles, and family friends. The Adoption and Children Act 2002 introduced special guardianship orders to deal with these situations and bridge the gap between a residence order (which a parent can apply for to release without court authorization) and adoption (which ends the legal relationship between a child and its parents).
What is a special guardianship order?
A special guardianship order is an order made by the court that places a child to love with someone other than their birth parents on a long-term basis. The guardian will be granted parental authority, which he can exercise to the exclusion of all others having parental authority (generally those named on the child’s birth certificate). This means that the guardian can make decisions for the child, such as the school he attends, the medical procedures he receives and the activities in which he participates. Guardians can also take a child out of England and Wales for a period of up to three months, compared to a children’s settlement order under which a child can only be removed from jurisdiction. for a month.
The order will normally last until a child turns 18 or another order is placed.
Who can apply?
You must be over 18 and not the parent of the child in question to apply. The following categories of people are eligible to apply:
- Any guardian of the child;
- Anyone who is named in a Child Arrangements Order as the person with whom the child is to live;
- A foster parent from the local authority with whom the child has lived for at least one year immediately preceding the application;
- A parent with whom the child has lived for a period of at least one year immediately preceding the application;
- The child is in the care of the local authority and the local authority consents to your making a request; Where
- You have leave from the court.
What will the Court consider?
When deciding whether or not to grant a special guardianship order, the court will consider the welfare checklist as defined in the Children’s Act 1989. It is as follows:
- The verifiable wishes and feelings of the child concerned in the light of his age and understanding;
- The physical, emotional and educational needs of the child;
- The likely effects of any change in the child’s situation;
- The age, sex, origin of the child and any other characteristics that the Court considers relevant;
- Any harm that the child has suffered or is likely to suffer;
- The applicant’s ability to meet the needs of the child; and
- The range of powers available to the Court.
How to register
Applications can be made by an individual or jointly by two or more people to become the special guardian of a child. Anyone wishing to apply for a special guardianship order must give three months written notice to the local authority confirming their intention to apply. The local authority will then prepare a report for the Court dealing with the following points:
- If the child has siblings and contact details of both parents;
- The relationship that the child has with other members of the family and the arrangements made for the child to remain in contact with his extended family;
- The wishes and feelings of the parents and the child;
- The family situation of the potential tutor;
- Parental capacity; and
- An assessment of how a special guardianship order would meet a child’s long-term interests compared to other types of orders, such as adoption.
If there is no take-over procedure, you will need to submit a request using form C1, form C13A and form FM1. While this is not a requirement, it also helps to submit a statement in support of your claim covering your relationship with the child, your experience in caring for the child, your understanding of the reasons for the the child should not be in the care of his parents, the steps you have taken to inform the local authority of your intention and plans for the care of the child, including future contact with their parents.
Can an order be canceled?
As mentioned, the child’s parents cannot request that the order be lifted without leave from the court. The granting of this authorization is known as the âcandidate authorizationâ.
In the recent case of Re M (Special guardianship order: authorization to request release), the Court of Appeal clarified the test applicable to an application for leave to seek the lifting of a special guardianship order. This is a two-step test:
- The Court must find that there has been a material change in circumstances. Significant means “considerable, remarkable and important” but not “exceptional, immense or insurmountable”.
- There must be a real prospect of success.
The effect of hearing or not hearing the request on the well-being of the child is not critical at this stage.
Talk to our family law specialists
The IBB Law family team can provide expert advice on all family law matters. To contact the team, please email [email protected] or call 03 456 381 381.