In the first of a two-part article, Sue Spencer examines special guardianship orders


Special guardianship orders (SGOs) are a creature of the Adoption and Children Act 2002, which inserted section 14 A-G into the Children Act 1989 from 30 December 2005, supported by the Special Guardianship Regulations (SI 2005/1109) and the Special Guardianship Guidance.



An SGO is a type of section 8 order. The intention of the SGO is to provide a more secure placement than can be achieved by a residence order for those children/carers for whom adoption is not suitable. This might include:

l An older child reluctant to lose their legal status within their birth family;

l Any child cared for within the wider birth family, where the nature of the severance with a birth family which adoption brings about would be unhelpful;

l Any long-term placement where otherwise a residence order would be considered, which needs the greater security of an SGO, together with the extra local authority help that is intended to come with it; and

l A carer/child for whom adoption would be unacceptable for cultural or religious reasons. An unaccompanied child asylum seeker might find the best sort of security through this sort of order, without the severance of legal and cultural bonds with the child's family in its homeland.



Applications can be made by:

l A guardian of the child;

l A person with a residence order in their favour;

l A local authority foster parent with whom the child has lived for at least one year immediately preceding the application;

l Anyone with whom the child has lived for three of the last five years;

l Anyone else with the consent of a person with a residence order, or, in the case of a looked-after child, the local authority, or otherwise all persons with parental responsibility; and

l Any person not listed above who obtains the leave of the court.



A local authority cannot apply for an SGO on behalf of someone. That 'someone' must launch the application in their own right. The proposed special guardian must be over 18 and cannot be the child's parent. As with adoption orders, if a couple apply, they do not have to be married or have entered into a civil partnership.



The court can also impose an SGO on parties who have not applied for it, and may not even seek it, provided the court is satisfied on the usual criteria that the welfare of the child requires it (section 14A(6)(b)).



Notice of at least three months must be given to the relevant local authority of the intention to seek an SGO - there is an exception where the application for an SGO is to compete with an on-going placement application. The local authority uses the three-month period to write a report on the appropriateness of the SGO. The expected content of the report is set out in schedule 1 to the regulations, supplemented by the schedule to the guidance.



Local authorities are concerned that the 13 weeks given for a report, which may be of considerable substance, is insufficient. In the first major case on SGOs, DO v LP, PH, Bury MBC and GN [2007] EWCA Civ 54, now reported as Re S (a child) (adoption order or special guardianship order) [2007] All ER (D) 81 (Feb), at paragraph 127, the requirements for the report are described as 'onerous'. However, the Act, at section 14(11), prohibits the court from making an SGO unless the court has also received a prescribed report.



In Re S, there was no prescribed report before the court when the circuit judge made the SGO, but this was not a ground of appeal. The matter was raised by the Court of Appeal itself and dealt with in a supplementary judgement, as yet unreported, Re S (a child) No2 [2007] EWCA Civ 90. Whilst clear that until there was a report, there could be no SGO, the court was also prepared to be pragmatic about how the report was presented. In Re S (No1), most of the matters to be covered in the report were already covered elsewhere in the on-going proceedings, and the court was content for the local authority to provide a report which cross-referenced the information and simply filled in any gaps. The court urged a similar pragmatic approach where appropriate (paragraph 16 of Re S (no 2)).



Considerations at the final hearing

The court will decide whether or not to make the SGO by applying the principles and factors contained in section 1 of the Children Act 1989, in the same way as for any other section 8 order. At the same time, the court can also consider by what surname the child should be known.



The court must also consider what (if anything) should happen to existing section 8 orders and what arrangements for contact have been made, together with any order needed to regulate contact. Following Re S, the court will also want to consider surrounding and supporting orders, including questions of contact, and section 91(14) orders prohibiting further applications.

This last point is covered in the second part of this article, which looks at Re S in more detail.



To summarise, the effects of an SGO are:

l The special guardian(s) acquires parental responsibility (section 14C of the Children Act 1989) and can exercise it to the exclusion of anyone else except another special guardian;

l The special guardian can remove the child from the jurisdiction for up to three months without the consent of any other holder of parental responsibility or an order of the court;

l The parents do, however, retain parental responsibility. It is their ability to exercise it which is curtailed. As a matter of law, the child is still 'theirs', unlike the position where an adoption order is made;

l An SGO can be varied or discharged (section 14D). There is a high threshold for variation or discharge, reinforcing the legislative policy of the SGO as a long-term secure order. Leave is often needed (section 14D(3) and (5)) and a parent must show a significant change in the circumstances since the making of the SGO before leave will be given; and

l Prescribed support services must be provided (section 14F and regulations)



The support services are designed to increase the attractiveness of an SGO as an alternative to adoption. The financial support is set out at regulation 6 of chapter 2, and the assistance in chapter 1. How that will be interpreted and provided on the ground will vary around the country.



District Judge Sue Spencer sits at Leeds Combined Court Centre