The DfE calls for views on best practice in making Special Guardianship Orders

The Department for Education (DfE) launched a consultation on 16 July 2015 into the changing use of special guardianship orders. The consultation document can be viewed here. This is intended to offer an opportunity to local authorities, children and young people, special guardians, social workers, birth families and the judiciary and lawyers to give our views. This article relates some of the findings and offers some suggestions for the future of special guardianship.

DfE research undertaken by Jim Wade published in 2014 on children who were made the subject of SGOs prior to 31 March 2011, found that special guardianship had been welcomed by practitioners and families, and that its use steadily increased following its introduction in December 2005. Practitioners saw special guardianship orders as an important pathway to permanence for some children, and the risk of disruption was relatively low(just under 6% over the 5 year period of the study). However, some concerns were raised and the consultation paper concludes with a series of questions upon which views of interested parties are sought.

Impact of the Children and Families Act 2014 on SGOs

To begin on a positive note, LAs report that pre-proceedings work has helped to identify potential special guardians earlier, and children are leaving care through special guardianship more quickly than before.

However,   LAs have expressed concern that in order to comply with the  requirement (introduced by Children and Families Act) to complete cases within 26 weeks, some special guardianship orders have been awarded on incomplete or partial information because of the short time scales LAs have had to work to. LAs also say that the threshold is lower for placing children with relatives or others under a special guardianship orders than for other forms of permanence. It cannot be right, or in children’s best interests, for this group of permanent carers to be assessed in a less robust way than others. It seems probable that the guidelines for social work practice will change to remedy this problem.

Is there a case for an ‘interim special guardianship order’?

In his research Wade also identifies the concern among practitioners that time to prepare special guardians for the challenges ahead was constrained: only around one half of guardians in their survey felt they had been fully prepared for the task of parenting. Time for preparation is accepted as good practice in fostering and adoption; adoption orders are not made without a prescribed period of ‘settling in’. There is no equivalent provision for special guardianship orders. This may be because historically it was assumed that special guardianship orders would be made for children living in settled homes and with already established relationships with their carers, whereas in fact 17% of children in the survey – a sizeable minority – only moved to live with their guardian at the time of special guardianship orders.

Since one of the best predictors of future success of the placement was the strength of the bond with the carer at the time of special guardianship order, there must surely be an argument for testing relationships, perhaps under fostering regulations, or by means of an interim special guardianship order before a permanent move to special guardianship is made? This would allow for a trial period during which the relationships can be monitored. Of course, such  delay would not sit well with the 26 week objective – but if it avoided unnecessary future breakdowns of placements which result in the child being returned to the care system, it might be considered to be ‘purposeful delay’?

Should supervision orders be made as a matter of course when a SGO is awarded?

There has been an increase in the number of special guardianship orders awarded with a supervision order. The DfE states that it aims to understand how and why special guardianship orders are being used and the boundaries between local authority and special guardian responsibilities where an special guardianship orders has been awarded.

In some cases, supervision orders are required alongside special guardianship orders – it may be that the special guardianship orders need support with parenting, if they are inexperienced, or with managing contact issues. Very often the relationship between birth parents who are contesting care proceedings, and those who have been assessed as suitable special guardians (whose parental responsibility it is intended will override that of the birth parents) is strained, if not fraught. In many cases the special guardians will at the very least need the support which can be provided by the LA under a supervision order and perhaps also a tight written agreement, and they may even need the protection of the court by means of Prohibited Steps or Non-molestation orders.  In my view (and I know this is shared by many others) it is hard to imagine a case where special guardians would not require the support afforded under a supervision order, at least in the initial stages.

Other concerns expressed by LAs

There were other concerns, for example that a special guardianship order is sometimes seen as a temporary measure until a child can be returned to the care of parents, and that some special guardians are not getting enough support to manage the impact of abuse or neglect in early childhood.

Have your say

Views are sought on the following questions:

• Whether there are any changes needed to the legal and /or practice framework in which special guardianship decisions are made, or whether the current framework works well.
• How well assessment for special guardians works at the moment, and whether this could be improved.
• What advice and support is most important at each stage of an SGO.
• Your views on what the best practice in special guardianship looks like so that [the government] can support all practitioners to deliver this.

The consultation closes on 18 September 2015.

Elizabeth Withyman

Elizabeth Withyman practises exclusively in Children Act proceedings, regularly accepting instructions from parents and from a number of different local authorities in care proceedings.