Tuesday 22 May 2007

Special Guardianship Orders Checklists-solicitors

I have been inundated by email, misscannon@gmail.com /sophia.cannon@tooks.co.uk
for assistance regarding Special Guardianship Orders under section 14 (A) of the Children Act 1989 ("the Act") from solicitors, local authorities and litigants in person. I am sure, however, that the Regulations must be on the government website.

I have decided therefore, to post three mini- checklists, all looking at the Act from their perspectives.

The Solicitors' Checklist:
The 4R's

  • The Regulations
  • The Report
  • The Remuneration
  • The Responsibility
The Regulations


The first thing I would state is that the each and every solicitor should have regard to the Special Guardianship Regulations.

This is secondary legislation which is plump with duties, responsibilities and the services that the local authority are statutorily responsible for. I have an electronic copy which I now take to court as the Regulations are omitted from the standard practice handbooks. (There is a helpful, 12 point Ariel font laden discussion before the heavy, 8 point, Times New Roman statute which is a must.)

The Regulations are ripe with local authority responsibility for the provision of services, including, for example, the provision of respite care for the special guardian ("specials").

Regulation 3(3), for example, requires that, if respite is provided and the care consists of the provision of accommodation, this must be accommodation provided by or on behalf of a local authority under section 23 of the Act (accommodation of looked after children) or by a voluntary organisation under section 59 of the Act. Therefore any arrangements by a local authority for respite care must involve the child being looked after for the duration of the period of respite care. This requires that appropriate safeguards are in place during the respite care and that any foster parent providing respite care has been approved under the Fostering Services Regulations 2002.


For example, this can be used for those grandparent specials who require a holiday without their grandchildren but cannot send them back to their parents!



The Report

Section 14A(8)
of the Act prescribes that on receipt of a notice of an application for a special guardianship order the local authority must investigate the matter and prepare a report for the court dealing with the suitability of the applicant to be a special guardian.
What tends to happen however, is this. There are already care proceedings. No-one has sought to invite the court, under section 14 (9) of its own motion to order a report. There is a brinkmanship between the local authority and a potential special guardian as will the special apply and will the local authority report.

I would advise that all solicitors should invite the court's own discretion to be exercised and save the court fee. The invitation to the court can be dealt with administratively, by consent, or at the next hearing.

Section 14 (A)(9) The court may itself ask a local authority to conduct such an investigation and prepare such a report, and the local authority must do so.


There is a third way however, where a person intends to apply for a special guardianship order they must give three months written notice to the local authority. It is more likely that before the client has attended for consultation, there will be have been a form of notice given. Again, I will discuss this fully from the foster parents'/relatives' perspective.
But as a solicitor, how do you identify the notice?

Sometimes the notice is explicit, a letter asking for the order for example. There are however unclear requests. I have seen a letter for permission to adopt. Another was a note asking for "keeping the child until grown". As these implicit notices were not sent to the right department, or even recorded the local authority did not start the report.

I will discuss this from the perspective of the local authorities social worker later.

Upon receipt of written notice the local authority is required to investigate and prepare a report on the applicant’s suitability to be a special guardian, on matters prescribed in the Schedule and on any other matter the local authority considers relevant. This is how a report can be prepared before coming to court reducing costs and time.

The local authority often complain of report fatigue. Sometimes the information is in a care plan, looking at the child's future, other information is in an assessment of the relative under a Regulation 38 report (foster care assessment).

Case law suggests that the Special Guardianship report is crucial however, as the focus is services, needs of the child, the services to meet those needs and who is responsible for its execution. The focus is entirely different.


The matters specified in the Schedule are the matters prescribed for the purposes of section
14A(8)(b) of the Act (matters to be dealt with in report for the court). It is regulation 21 which clearly states what is in the report.


The recent case of Re S no 2 9th February 2007 states that the court must have a report before it, before it can make an order.

The main complaint from solicitors is that although it is perfectly clear to a local authority that a Special Guardianship Order is
"on the cards", some of the the unspoken elements are there namely:

There is a relative or foster carer, with whom the children were placed for over a year, and that more likely than not, the precipitating incident was care proceedings or the relative is party to the proceedings and the parenting has been ruled out. Other elements are the children are unlikely to be adopted due to age and their own knowledge of their situation. These elements are actually part of the rubric of the Act and the rational behind Special Guardianship Orders, a new legislative option for providing permanence short of adoption.

These elements demonstrate an internal checklist which I will discuss fully for the potential relatives.



The Remuneration
Another issue is that Special Guardianship applications are viewed as private law proceedings by the Legal Services Commission.
Whether it was envisaged by the draftsmen of the Act that specials would initiate
applications in private law proceedings or be reactive after the intervention of a local authority in the children's lives, is an issue that causes concern to solicitors.
The unfairness is that the special cannot often afford to initiate proceedings and is left relying upon the local authority's opinion and advice.
The means and merit test does not apply as the orders are considered private law applications, even if the care proceedings are live. Some enlightened local authorities are actually paying for independent counsel to assist.
Again, of importance, is that a special has to have a financial check under regulation 21. It is easily missed. Some specials often out of humility refuse to be assessed.
The financial assessment however, is mandatory. As solicitor, please ask for a copy as this is the cornerstone for assessment, services and need, so that it can be rechecked for cogency and against any public funding certificate, if any.
The Responsibility

There are two parts for this section. Which local authority is responsible and who should start the process for special guardianship application. I will/have discuss/discussed this fully in the Report section.

It is clear however, that the local authority must be identified immediately. More likely than not, the children moved/ will move from London Borough X to Metropolitan Borough Y to County Council Z. All solicitors must identify the originating local authority and the receiving local authority.

It is crucial to the stability, security and certainty of the placement to have continuity for the child and family in the early stages of the currency of the order. Regulation 5 provides that the assessment and provision of services for the child, the special and any children of the special all remain the responsibility of the local authority where the child was last looked after for three years from the date of the order. This rule applies wherever the family live during this period.

Therefore as a solicitor, if something has gone wrong under the order, then the residence of the placement may not be where the responsible local authority is.

If there are any other important factors solicitors should consider, I shall add them in time.

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