Applications for Special Guardianship Orders

Where the child is cared or was cared for immediately prior to the making of the Special Guardianship Order, the following people MUST receive an assessment at their request:

• The child;
• The Special Guardian or prospective Special Guardian;
• A parent (but only in relation to their need for support with contact and/or discussion groups).

Where the child is not cared for or was not cared for immediately prior to the making of the Special Guardianship Order, the following people MAY be offered an assessment of their need for Special Guardianship support services:

• The child;
• The Special Guardian or prospective Special Guardian;
• A parent.

In all cases, whether the Special Guardianship child is cared for or not, the following people also MAY be offered an assessment of their need for Special Guardianship support services:

• A child of the Special Guardian;
• Any person with a significant ongoing relationship with the child.

Requests for assessments for Special Guardianship support (including financial) will be presented to the Permanence Panel for agreement, or not, of this request. Regulations will be taken into consideration when making this decision (see The Special Guardianship (Amendment) Regulations 2016).

If a Local Authority decides not to assess in cases where they have discretion as above, they must notify the decision in writing, including reasons for the decision, to the person making the request (see Template Letter Decline Application for Assessment for Special Guardianship Support Services).

Where it has been agreed to conduct an assessment, this should be based on the Assessment Framework under Working Together to Safeguard Children and include the following:

• The developmental needs of the child;
• The parenting capacity of the Special Guardian or prospective Special Guardian to meet the child's needs;
• Family and environmental factors that have shaped the life of the child and the capacity of the Special Guardian or prospective Special Guardian to respond to those experiences;
• Comment on how life with the Special Guardian might be for the child;
• Any previous assessment of the child or Special Guardian that is relevant;
• The needs of the Special Guardian or prospective Special Guardian and their family;
• The impact of the Special Guardianship Order on the relationship between the child, parent and Special Guardian.

At the end of the assessment of support needs, the draft support plan will be quality assured by the Advanced Practitioner (or team Manager) of the Kinship Team and then considered by the Permanence panel who will inform the person requesting provision of its outcome, including:

• Information about the outcome of the assessment and the reasons for it;
• Where it relates to financial support, the basis on which this is determined;
• The services (if any) that the Local Authority proposes to provide to help meet the child's needs;
• If financial support is to be paid, the amount and conditions attached.

Where an assessment identifies the need for ongoing support services, a Special Guardianship Support Plan must be completed. This Plan should be based upon the lived experience of the child and the lived experience of the prospective Special Guardian.

Other agencies, such as education and health, may need to be consulted about the contents of the Plan.

From 1 September 2021, the School Admissions Code provides that children being raised by family and friends carers under a Special Guardianship Order or Child Arrangement Order, who struggle to get a school place during the year, will be supported in finding one.

The Plan should be completed on the agreed template and be written in such a way that everyone affected can understand (see Special Guardianship Support Plan):

1. The services to be provided;
2. The objectives and criteria for success;
3. Timescales for provision;
4. Procedures for review;
5. A named person to monitor the provision of services in accordance with the Plan;
6. Keeping in touch arrangements between the child and parent(s) which should include: Type of contact, frequency and duration, who is responsible for making the arrangements of contact, what practical arrangements need to be provided to facilitate contact and what professional support and assistance, if any, will be provided to the special guardian;
7. Any harm that the child may have suffered and the capacity of the prospective Special Guardian to enable the child’s developmental recovery from that harm.

Financial issues should not be the sole reason for a Special Guardianship arrangement failing to endure. Financial support is payable to facilitate arrangements for a person to become the child's Special Guardian, where this is considered to be beneficial to the child's welfare and to support the continuation of these arrangements after the order has been made.

Cumberland Council will ensure that Special Guardians and Prospective Special Guardians are aware of all the benefits available to them. Financial support paid cannot duplicate any other payment available to the Special Guardian, therefore Cumberland Council will take account of any grant, benefit or allowance which is available in respect of the needs arising as a result of becoming a Special Guardian of the child.

Regulation 6 sets out the circumstances in which financial support may be paid to a special guardian or prospective special guardian. These are:

• Where it is necessary to ensure that the special guardian or prospective special guardian can look after the child;
• Where the child needs special care which requires a greater expenditure of resources than would otherwise be the case because of illness, disability, emotional or behavioural difficulties or the consequences of past abuse or neglect;
• Where the Local Authority consider that it is appropriate to contribute to any legal costs, including court fees, of a Special Guardian or prospective Special Guardian associated with:
  1. The making of a Special Guardianship Order or any application to vary or discharge such an order;
  2. An application for a Child Arrangement  order under section 8 of the Act;
  3. An order for financial provision to be made to or for the benefit of the child.
• Where the Local Authority consider it appropriate to make a contribution to the expenditure necessary for the purpose of accommodating and maintaining the child, including the provision of furniture and domestic equipment, alterations to and adaptations of the home, provision of means of transport, provision of clothing, toys and other items necessary for the purposes of looking after the child.

Payment of financial support for special care is intended when the child's condition is serious and long term. For example, where a child needs a special diet or where items such as shoes, clothing or bedding need to be replaced at a higher rate than would normally be the case with a child of similar age who was unaffected by the particular condition.

The Special Guardian's financial circumstances will always be considered when ongoing financial support is being considered. They will therefore be asked to complete a financial assessment form, which on completion, must be passed to the Finance Officer responsible for carrying out means tested assessments (see Guide to Assessment of Financial Support).

Once the means tested assessment has been carried out, the Finance Officer will send written notification of the outcome to the relevant Social Worker, who will present this as part of their draft support plan to the Permanence Panel for their approval.

The outcome of the financial assessment will then be written into the support plan.

Special Guardians who were previously approved as foster carers for the child, immediately before the order was granted, and met the eligibility criteria (as set out in the fostering financial guide) will be entitled to the equivalent of the fostering Regular Weekly Allowance (RWA) and level one fee non means tested for two years (minus child benefit and other eligible child related benefits) To become eligible, the Special Guardian must have attended the preparation training (Skills to Foster or equivalent) and been fully approved as Foster Carers by the Agency Decision Maker following attendance at the Fostering panel. 

The two year period of ongoing allowances will give the family time to adjust to their new circumstances. If having regard to the exceptional needs of the child or any other exceptional circumstances, the Local Authority consider it appropriate to continue any payment beyond the two years, this will be subject to an annual means tested financial review.

The only circumstance when the local authority MUST disregard means is when providing financial support in respect of legal costs, including fees payable to a court in respect of a child who is cared for where the Local Authority support the making of the Special Guardianship Order.

Where Special Guardians are in receipt of financial support, the Finance Team will write to them annually, requesting completion of the Financial Assessment Review form, together with a request for information about any changes in circumstances of the child or the Special guardian.

If any change in financial support is considered appropriate, the recommended change will be forwarded to the Service Manager with responsibility for overseeing financial assessments, for a decision. Where a change is approved, the Special Guardian should be notified in writing of the change and the reason for this.

Where Special Guardians do not return the Assessment Review forms within the required timescale, the Central Payments Team will send a reminder letter, giving 28 days notice of the suspension of payments if the information requested is not received.

Once the draft support plan has been completed and shared with the Prospective Special Guardians the Social Worker will present this to Permanence panel who will decide, on behalf of Cumberland Council, whether a person has need of Special Guardianship services. Before this decision is reached, the Special Guardian or prospective Special Guardian will be given opportunity to make representation.

The Permanence panel decision will be communicated to the applicant and will give notice to the Special Guardian/prospective Special Guardian which will contain:

• A statement detailing the outcome of the assessment of the person's needs for Special Guardianship support services;
• Where the assessment relates to the need for financial support, the basis upon which financial support is determined;
• Whether the Local Authority propose to provide the applicant with Special guardianship support services;
• The services (if any) which the Local Authority proposes are provided to the applicant;
• If financial support is to be paid, the proposed amount that would be payable and any conditions attached to the payment;
• If proposals are to provide Special Guardianship support services which require a plan, the notice will be accompanied by a draft plan;
• Reference will be made to the source of independent advice and advocacy;
• There will be a 28 day consultation period (see Special Guardianship Draft Support Plan - Proposed Decision).

No final decision will be made until the consultation period has expired or otherwise that representations have been made or notification has been received that the individual is satisfied with the proposed decision. If written representations are made to the administrator, the assessing Social Worker must present these and arrange for the request to be considered by the Permanence panel. The Permanence panel will consider any representations received and then decide whether to provide any services to the person who has been assessed, taking into account the individual circumstances of the family and the resources available locally.

When the final support plan has been agreed, this will be sent to the Special Guardians, as specified by the court or to the Special Guardian if not under the courts' jurisdiction. The letter with the support plan will include:

• Details of any plan and person nominated to monitor the provision of the services in accordance with the plan (The nominated person is the advanced practitioner in the kinship care team);
• If financial support is to be payable then further information will be provided:
  1. The method of the determination of the amount of financial support;
  2. If paid in instalments, the amount, frequency, duration and when payments will commence;
  3. If to pay a single payment, when it will be paid;
  4. Any conditions payment is subject to, date conditions must be met, consequences of failing to meet conditions;
  5. The responsibilities of the Local Authority in relation to reviews and of the Special Guardians pursuant to any conditions for payment (see Letter for the Outcome of Annual Review - Special Guardianship Order and Final Special Guardianship Order Support Plan).

Special Guardianship Support Plans must be reviewed taking into account the following:

• Any change of circumstances affecting the support;
• At whichever stage of implementation of the plan is considered most appropriate;
• In any event at least annually.

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.

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.

Notice will be given by the Social Worker to include:

• A statement detailing the outcome of the assessment of the person's needs for Special Guardianship support services;
• Where the assessment relates to the need for financial support, the basis upon which financial support is determined;
• Whether the Local Authority proposes to provide the Special Guardian with Special Guardianship support services;
• The services (if any) that the Local Authority proposes are provided to the Special Guardian;
• If financial support is to be paid, the proposed amount payable;
• Any conditions attached to the payment;
• If proposals are to provide Special Guardianship support services which require a plan, the notice will be accompanied by a draft plan (see Letter for the Outcome of Annual Review - Special Guardianship Order).

After considering any representations, or after the period of 28 days has elapsed, the Team Manager will give the Special Guardian notice of their decision including the reasons. Where resolution cannot be reached the matter will be returned to the Permanence Panel (see Template Letter Final Decision - Special Guardianship Review).

Where Cumberland Council provides financial support payable periodically the financial support must be reviewed on receipt of the annual statement from the Special Guardian. Any relevant change in circumstances, notifications or breach of conditions will trigger a review at any point in the implementation of the plan (see Letter for the Outcome of Annual Review - Special Guardianship Order).

If the child is cared for and the application has been agreed as part of the child's Permanence Plan, the assessments will usually have been undertaken and the outcomes agreed as part of the permanence planning for the child, in which case there will be no need to hold a planning meeting.

Practice Guidance on Special Guardianship (Public Law Working Group, 2021) note that where there are safeguarding or welfare concerns about a child, the statutory guidance is clear about the importance of local authorities engaging with the parents and the wider family network at an early stage through a Family Group Conference (see Kinship Care Procedure, Family Networks and Family Group Decision Making): the FGC should be used to share information, resolve possible disputes and conflicts with the local authority and to address long-standing tensions within the family. The pre-proceedings phase of the Public Law Outline (PLO) provides an important opportunity to engage the parents and family members in discussions about the future care of the child. 

In assessing the appropriateness of any potential applicants, the Local Authority must assess whether any option would not be consistent with the child's welfare, or, would not be reasonably practicable.

Whilst Relaunching the PLO made clear the importance of aiming to meet the statutory requirement of completing each public law case within 26 weeks, Timetabling and Timescale for Full Family and Friends Assessments (Family Justice Council) provides that:

‘This document serves to remind social workers, Guardians, lawyers, and the judiciary regarding the process required to be incorporated into any timescales for a full Family and Friends Assessment to be done to an appropriate standard, so as to provide for a sufficient (usually 12 week) assessment period to undertake the complex requirements inherent in any full assessment. Delay for children is always to be avoided, but nothing in the Public Law Outline, primary legislation, or jurisprudence requires corners to be cut in coming to a safe evidenced conclusion, that places the welfare of the child at the heart of any recommendation or decision’.

See: Care and Supervision Proceedings and the Public Law Outline Procedure.

Where a full assessment is undertaken, it is to be expected that this will usually require a 3-month time scale. It is imperative that referrals are made to the Kinship care team at the earliest opportunity to ensure proactive assessments and appropriate support to families. It is not appropriate to use Regulation 24 in anything other than an urgent situation that could not easily have been foreseen.

Assessments should be robust evidence-based and child-focussed. Before the assessment, the prospective carers should be provided with full information about:

1. What the assessment will involve;
2. The time and commitment needed from them;
3. A letter should be sent explaining the expectations of the carers and what they should think about during the process.

The assessment should carefully balance the strengths families may have: consider any existing relationships they have with the child; explore their parenting experience; the significance for the child of remaining within their family and network, against the carers' capacity to meet the assessed needs and the challenges that a particular child may bring on a long-term basis, (including  any additional needs as a result of significant harm or neglect they may have experienced),  and until their 18th birthday.

In recognising that each situation will be looked at on an individual basis, an interim arrangement with the proposed Special Guardians may be appropriately considered to both establish relationships between the child and Special Guardians and confirm the applicants' ability to carry out their parenting responsibilities, meet the needs of the child and promote their welfare and best interests. The child's Review should make a recommendation regarding the outcome of the Care proceedings for the child's Care Plan and this should be approved by the Service Manager.

Final recommendations should not be made until the essential tasks and activities for a full special guardianship assessment are completed, including all statutory checks and references.

A Supervision Order should not be sought as a means to ensure support and services are provided by the Local Authority (or as a form of 'safety net' for a child). Where considered necessary, the report should detail the reasons why such an Order is required. 

The prospective carers should have time to read the assessment report and the support plan before it is filed and comment on the report.

Following the filing of the report, the prospective Special Guardians should be given the opportunity to seek independent advice and legal advice to understand fully the implications of any Orders made and if need be, make applications of their own.

A Special Guardianship Support Plan will need to be provided around the time of filing the Special Guardianship Order report and its recommendation, detailing the support to be provided to the carers and the child and include family time for the child with their parents. The prospective Special Guardians should be able to seek legal advice about the Support Plan.

Best Practice Guidance: Special Guardianship Orders (Public Law Working Group, 2021) states that where there is little or no prior connection/relationship between the child and the prospective Special Guardian, it is very likely to be in the child's best interests to be cared for on an interim basis by the prospective Special Guardian in order to establish a meaningful relationship with the child.

Where the interim plan for the care of the child with the proposed Special Guardian is endorsed by the court, a timetable will need to be prepared that enables the proceedings to be concluded. That timetable will set out:

• The legal framework (as set out in Sub-appendix B) that authorises the placement of the child with the prospective Special Guardian until either the SGO is made or the care proceedings are concluded by other means;
• The period of time required for a robust evidence base to be established about the quality of care of the child by the prospective Special Guardian that will inform the court report. There are a number of factors that will need to be taken into account in agreeing this time period, such as:
  1. Any prior parenting experience by the prospect Special Guardian of the child;
  2. The identified needs of the child and any issues which have been identified and addressed as the child settles into the placement;
  3. Any wishes or feelings the child may have in light of their age and understanding;
  4. Any specific training or support that might be needed by the prospective Special Guardian or the child;
  5. The relationship that the prospective Special Guardian has with the parents of the child and other family members, as well as the significance of those relationships. Both from the child's point of view and those of the prospective Special Guardian, the on-going relationship within the family must be explored for the benefits and, where they exist, the risks.

An agreed plan must be completed on an individual basis that enables each of the issues fully and realistically to be addressed. As the relationship between the prospective Special Guardian and the child develops, specific questions and issues will arise that will further inform the detail of what needs to be explored.

Alongside the plan, the court will draw up a timetable for the outstanding issues that need to be resolved before a final order is made. As the interim guidance makes clear, that timetable should be dictated by the individual needs of the child. It is anticipated that this will be no more than 12 months from the interim placement of the child with the prospective Special Guardian. Where the evidence indicates that this may be through an SGO, this will include the preparation and submission of a report to the court which is evidence-based and compliant with the Special Guardianship Regulations 2005, as amended. In drawing up the timetable, the parties and the court should consider:

• Whether the prospective Special Guardian should make a formal application (if they have not already done so) for an SGO; and, if so, whether leave to make that application is required;
• Alternatively, the court will, in due course, subject to the court report prepared by the local authority, make an order of its own motion. 

If the court approves an extension, consideration will need to be given to the legal framework. It may not be possible for the child to be placed pursuant to an interim care order under the current regime imposed by Regulation 24 of The Care Planning, Placement and Case Review (England) Regulations 2010. In these circumstances, an alternative approach would be placement pursuant to section 8 of the Act: a Child Arrangements Order and an Interim Supervision Order to provide support for the placement, particularly during any transition period. The court should bear in mind the consequences arising out of any change to the legal framework, particularly if it impacts upon the child's status as a looked after child pursuant to section 22 of the Act (since April 2016 children cared for by special guardians who were 'looked after' immediately before the Special Guardianship Order was granted have been eligible for the Adoption and Special Guardianship Support Fund (ASGSF). The ASF provides funds to local authorities and regional adoption agencies to pay for essential therapeutic services for eligible adoptive and special guardianship order families).