The nature of special guardianship orders and the rights acquired

Special guardianship orders (SGOs) can be made under a new provision introduced into the framework of the Children Act 1989 through the Adoption and Children Act 2002. The effect of an SGO is that it appoints one or more individuals, who are not parents of the child, to be the child’s special guardian/s. As such that person is granted rights and responsibilities in relation to the child and their upbringing.

The aim of the SGO is to provide a child who is placed with a non-parent with some permanence in his living arrangements. Further, the type of order was created as an alternative to adoption or residence orders.

In practice, those orders are considered particularly suitable where a child has been place with a family member who is not a parent, which may for example result from care proceedings.

The powers under an SGO

In order for the person with an SGO to be the primary carer for the child, he is granted certain powers and responsibilities with the order. A special guardian has parental responsibility (PR) which he can exercise to the exclusion of all other holders of the rights and responsibilities associated with PR.

Nevertheless, there are restrictions in place regarding the exercise of PR and rights under it. For example, the remit of the powers of person with an SGO does not allow them to change a child’s surname. Further, he cannot remove the child from the UK without the permission of either the court or other holders of PR in respect of that child.

Who can apply for an SGO?

The person to be appointed a special guardian needs to be a non-parent of the child in question and must be over 18 years of age. 

The legal framework defines certain categories of people who are entitled to apply for an SGO and those include:

  • Guardian

  • Person who has been granted a residence order

  • Person with whom the child has lived continuously for at least three years

  • If there is a residence order in place any person who has the consent of the person with the residence order

  • If the child is in the care of a local authority any person who has the consent of that local authority

  • Local authority foster parent with whom the child has lived for at least one year prior to making an application 

If a person who does not fall within those specified categories wishes to apply, he would have to firstly apply for the leave of the court. If such leave is granted, then he would be allowed to file an application.

Local authorities and additional procedures

If the child is in the care of a local authority there are additional requirements for making an application. Those include that a person cannot make an application unless it gives at least three months notice to the local authority. For these purposes, notice could be given to the authority in whose care the child is currently or alternatively notice is to be given to the authority in whose area the child is ordinarily resident.

A local authority on receipt of notice must carry out an assessment and complete an SGO report.  

Where a placement order is in force, no special guardianship order may be made in respect of the child unless an application has been made for an adoption order, and the person applying for SGO has obtained the court’s leave.

The applications and the courts

The court may make an SGO in respect to a child in any family proceedings in which a question arises with respect of the welfare of the child where an application has been made by an entitled applicant or a person has obtained the leave of the court to make such an application.

Further, within the powers of the courts is to may make an SGO if it considers that such an order should be made even though no application has been filed.  

A court making an SGO has an obligation to consider the arrangements for contact between the child and its parents. It is important to note that section 8 contact orders can run alongside SGOs. Therefore, the grant of SGO does not extinguish the rights of a parent or person benefited from a contact order.