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Special Guardianship Orders were introduced into the Children Act 1989 by the Adoption and Children Act 2002. Special Guardianship Orders are intended to provide another option for legal permanence for children who cannot grow up with their birth families. A Special Guardianship Order gives the special guardian/s Parental Responsibility for the child which lasts until the child is 18. These orders do not remove Parental Responsibility from the child's birth parents, although it does limit their ability to exercise Parental Responsibility. In practice, this provides greater security for the child when compared to long term fostering but does not bring about the absolute legal severance from the birth family that comes from an Adoption Order.
In practice, a Special Guardianship Order means that the child is no longer the responsibility of the Local Authority, and the special guardian will have clear responsibilities for all day-to-day decisions about caring for the child or young person, and for taking important decisions about their upbringing, including their education. Both birth parents do retain their legal Parental Responsibility, but the special guardian only has to consult with them about these decisions in very exceptional circumstances.
An approach to the Local Authority from carers who wish to be considered as special guardians for a child needs to consider the welfare checklist set out in the Children Act 1989 with the child's welfare paramount. The views of the child, the carers and their suitability, including whether they fully understand their roles as special guardians must always be considered in detail. Every effort must be made to engage the prospective applicants and the child in the process.
When a child will cease to be looked after as a result of a Special Guardianship Order being made, it must be clear that the applicants fully understand how they will take responsibility for the child's upbringing without the involvement of the Local Authority.
The Local Authority is committed to finding safe, permanent options for children that are most suited to meet their individual needs. The Prime Minister's Review of Adoption in July 2000 found that there was a large group of children who did not wish to make the absolute legal break with their birth family that is associated with adoption. The Review noted that, although planned long-term fostering might suit some children, it lacked security and a proper sense of permanence in a family. Special Guardianship Orders were introduced to provide a different option for permanency that gives legal security for the child, without absolute severance from the child's birth family.
In considering whether Special Guardianship is an appropriate care plan for a child who is not able to remain in the care of their parents, the Local Authority will need to assess:
A parent of a child cannot be appointed as the child's special guardian. The court must decide that a Special Guardianship Order is the most appropriate action and in the best interests of the child. The court must also consider when making a Special Guardianship Order if a contact order should be made and whether any existing Section 8 Orders should be varied or discharged. The court must have the benefit of the local authority report dealing with the suitability of the applicant and any other matters that the local authority consider relevant before it can make an order (Children Act 1989, section 14A(8), (9).
Our expert family law solicitors have the legal experience needed to guide you through the Special Guardianship Order process and ensure that the best interests of the child involved are always at the heart of the matter.
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