Special Guardianship - how special is it?

Parental responsibility is a bundle of powers over and duties towards children. Mothers and married fathers have it automatically. Unmarried fathers can acquire it either by signing a parental responsibility agreement with the child’s mother, by marrying her or by a parental responsibility order made by a court. Since December 2003 unmarried fathers whose name appears on the birth certificate also have parental responsibility. Step parents can also apply for a parental responsibility and anyone, including an unmarried father, who obtains a residence order, (saying that a child shall live with them) acquires it. Anyone with parental responsibility for a child should consult with anyone else who has parental responsibility, which can often be impractical or difficult.

In care proceedings one possible outcome is that a child may be adopted and placed permanently away from his natural parent. Even then contact is possible through the letterbox scheme run by social services, or sometimes direct contact although this is rarely more than once or twice a year.
However if a child is placed with a family member there can be problems with the natural parent. If the court makes a residence order say in favour of an aunt, she will also have parental responsibility, but the mother does not lose it. Aunt should consult with mother about important decisions in a child’s upbringing. If they disagree mother may try to interfere in the care given by aunt, or may issue proceedings to ask the court to decide what should happen. There are often disputes between parents and carers even when no care proceedings are being taken.

Enter special guardianship. This order gives the aunt the right to make decisions to the exclusion of any other person with parental responsibility. It is likely that mother will still be around and will tell aunt what she thinks should happen. Now aunt can make the final decision. There are a number of people connected with the child who can apply for an order, and anyone can do so if they obtain the court’s permission.

They will have to give three months notice of their intention to apply for an order to the local authority, who will then prepare a report about the application. They also have to provide special guardianship support services giving counselling, information and advice.

Once made, the order can be varied or discharged, but only by certain individuals who have obtained the court’s permission to apply.

The child does not become the child of the aunt in the eyes of the law, unlike an adoption. But it does mean that aunt can care for the child without having to look over her shoulder. It is a step below adoption but it puts the special guardian in a strong position. A special guardianship order discharges any care order or any order for contact with the child in care. Aunt still needs either the written consent of anyone who has parental responsibility) or a court order giving permission, to change a child’s surname or to remove him from the UK, unless it is for less than three months.

It suits cases where the natural parent cannot care for their child, or where their views and practices are putting the child at risk or they keep interfering in ways that might damage the placement. It does not prevent mother seeing the child, nor from applying to the court where appropriate if there are significant issues about important matters, such as education or health. However, she needs a court order to interfere and the court will decide what is in the child’s best interests.

However special guardianship stops daily challenges to the decisions that are made by aunt and enables her and the child to get on with their lives. In the right circumstances it may offer major advantages for the person with the care of a child.

Published 22/12/2006.