What is a Special Guardian?
A Special Guardian is someone who is responsible for looking after a child, until they reach 18 years of age, if they cannot live with their birth parents.
A Special Guardian shares parental responsibility with the child’s parents and makes the day-to-day decisions in respect of the child, such as decisions regarding their health or education. They will not have to discuss these issues with the parents (Section 14(c) Children Act 1989).
However, there are a handful of circumstances in which the Special Guardian will require consent from everyone who shares parental responsibility. These include:
- Changing a child’s surname;
- Putting a child up for adoption;
- Taking a child abroad for more than 3 months; and
- Putting the child through a medical procedure for reasons other than improving their health.
If consent cannot be obtained from all others with parental responsibility, an application would need to be made to the Court.
Who can apply to become a Special Guardian?
You can apply to become a Special Guardian if (Section 14(a)(5) Children Act 1989):
- The child lives with you because there is already a Child Arrangements Order in place;
- You are already the child’s Legal Guardian;
- The child has lived with you for 3 of the last 5 years;
- You are the child’s relative or foster parent and the child has been living with you for at least 1 year;
- You have the agreement of the Local Authority if the child is currently in its care; and
- You have the agreement of everyone who has parental responsibility for the child.
If you do not fall into one of the above categories, you would have to apply to the Court to seek permission to apply for a Special Guardianship Order.
How to apply to become a Special Guardian?
Firstly, you would need to provide 3 months’ notice to the Local Authority of your intent to make an application for a Special Guardianship Order and also, inform anyone else who is named in an Order concerning the child or anyone else in any existing Court proceedings. (Section 14(a)(7) Children Act 1989)
Once this has been done, you will need to complete your application and send these to your local Family Court with the application fee.
What happens next?
The Court will process your application and list the matter for a First Directions Hearing to decide what needs to be done.
The Local Authority will need to provide to the Court a Special Guardian Assessment. This would detail whether the person who has applied for the Order is a suitable candidate to be looking after the child on a long-term, permanent basis. It will also list any support that the applicant may require. (Section 14(a)(9)-(11) Children Act 1989)
The child’s parents will have the opportunity to contest any application should they wish to do so, which would be dealt with at any final hearing.
If a Special Guardianship Order is made and the parents seek to challenge this in the future, they can do by making an application to the Court. However, for the Special Guardianship Order to be discharged they would have to demonstrate that there has been a significant change of circumstances since the Order was made.
If you would like further advice on Care Proceedings, please contact the Care Proceedings & Children Services team by calling 0161 884 0903 or emailing bromleys@bromleys.co.uk.