Special Guardianship – Interim Guidance

Elisabeth Richards considers the recent interim guidance from the Family Justice Council on the management of special guardianship orders.

In the light of recent issues with the breakdown and failure of SGOs, including the deaths of some children, and the decision of Munby J in Re P-S (Children) [2018] EWCA Civ 1407, the Family Justice Council (FJC) has issued Interim Guidance, approved by the President, on the management of SGOs. Further guidance will be issued later.

Its primary purpose is to address cases where an extension of the 26-week time limit is sought to more fully assess potential SGs in public law proceedings.

1. Alternative potential carers should be identified at an early stage, and where possible, pre-proceedings.
2. Family Group Conferences are recommended as important if identifying alternative family and friends’ carers.
3. All parties to proceedings (including the children’s guardian) should file and serve position statements before the 1st CMH including details of proposed alternative carers to be assessed by the LA.
4. Proposed carers should not be governed by parents’ views of approval or disapproval, but focused on the children’s best interests.
5. Where the initial viability assessment is negative the LA must notify that person, and how to challenge the assessment, including seeking leave under section 10 (9).
6. Any challenge or application must be pursued promptly and listed for urgent directions.
7. There are cases where more time is required to complete an appropriate assessment and an extension of the 26-week period may be necessary, including:

1. 1. Where potential carers are identified late.
   2. Where it is “necessary to enable the court to resolve the proceedings justly” section 32 (5) CA 1989.
   3. If the proposed carers live in another country.
   4. Where the court has undertaken the welfare evaluation in terms of possible arrangements for the children, but further time is required to ensure the stability of the placement.  

Where the viability is positive and a full assessment is to be undertaken:

1. The court should consider and make orders for the children to spend time with the proposed carer as part of the full assessment.
2. An SGO assessment which does not include this is likely to be regarded as incomplete.
3. The court should consider the appropriate legal framework. If an ICO is not available, then consider a section 8 CAO plus an ISO to provide support for the placement.

In an accompanying document the FJC looks at the Timescales for Full Family and Friend’s Assessments (FFAs).

1. In the context of the 26-week limit 12 weeks is normally required for a full FFA.
2. Any assessment will need to balance the strength and value of a pre-existing relationship against the prospective carers capacity to meet the assessed needs of the child throughout minority, including any need for reparative therapy and care.
3. Assessments are required by regulation to consider prospective SG’s: -

1. 1. Current and past relationship with the child.
   2. Parenting capacity.
   3. Understanding and ability to meet the child’s particular needs, including reparative care.
   4. Ability to protect the child from current or risk of future harm, posed by the parents, or other relevant persons.
   5. Ability to care until 18 years of age.

LAs should consider presenting their full SG assessment in a format which also serves as a report to Fostering Panel.

The document then sets out requirements for achieving a comprehensive FFA, including: -

1. Enhanced DBS checks in all household members over 16 years. These take at least 8½ weeks, so early application is crucial.
2. Medical assessments.
3. LA checks on all household members.
4. Reading court documents and SW files on all relevant persons and their children.
5. References from schools, nurseries and childminders for any children in the household.
6. References from employers.
7. Health and safety checks on the home and any animals.

Ideally the assessment process should be long and interactive enough for prospective carers to assimilate information and consider any changes that might be necessary.

It should be remembered that assessment happens at a time of emotion, stress and rapid change and therefore prospective carers require flexible, creative and relationship-based social work, plus time, in order for the assessment to be comprehensive and fair.

To avoid delay, time should be allocated as early as possible for: -

1. Observation of contact.
2. Direct work with the children of the prospective carer.
3. Interviews with:

1. 1. Significant family members.
   2. Any significant ex-partners.
   3. Three referees.

Prospective carers need time and opportunity to read the report before filing and provide any comment.

After filing prospective carers should be given an opportunity to seek independent legal advice.

Timescales need to reflect the general complexity of the task of FFAs and where unexpected complexities arise these should be identified to the court as part of any consideration of an application for an extension.

Elisabeth Richards is a barrister at St Ives Chambers. She can be contacted on 0121 236 0863 or This email address is being protected from spambots. You need JavaScript enabled to view it..