Commentary on Sections Part 2 – Children Order Amendments Section 119: Special guardianship
Special guardianship orders (SGOs) are intended to meet the needs of children who cannot live with their birth parents, for whom adoption is not appropriate, but who could still benefit from a legally secure placement.
Subsection (1) inserts new Articles 14A to 14F into the Children Order to provide for the new SGO. The new Articles provide for who may apply for an order, the circumstances in which orders may be made, the nature and effect of SGOs, when a court may vary or discharge a SGO and for authority support services for special guardians.
Special Guardianship Orders - Article 14A
New Article 14A provides for who may apply for an SGO and the application process. The person in whose favour an SGO is made is a 'special guardian'. People may apply jointly to become special guardians. They need not be married. Paragraph (2) provides that special guardians must be 18 or over and that the parents of a child may not become the child’s special guardian. Paragraphs (3) to (5) make provision about who may apply for an order. A court may make an SGO in respect of any child on the application of:
	any guardian of the child with whom the child has lived for one year;
	an authority foster carer with whom the child has lived for one year;
	anyone who holds a residence order with respect to the child, or has the consent of all those in whose favour a residence order is in force, and with whom the child has lived for one year;
	anyone with whom the child has lived for three out of the last five years;
	where the child is in the care of an authority, anyone with the authority's consent if the child has lived with the applicant for at least a year;
	a relative with whom the child has lived for a period of least one year immediately preceding the application;
	in any other case, anyone who has the consent of all those with parental responsibility for the child and with whom the child has lived with for at least one year; and
	anyone else, including the child, who has the leave of the court to apply and has met the one year residency requirement.
Under paragraph (6), the court may also make an SGO in any family proceedings concerning the welfare of a child if they consider an order should be made and an application for such an order has been made. Family proceedings are defined in Article 8(3) of the Children Order and will include adoption proceedings under this Act. The court may also, in any proceedings on an application for a care or supervision order concerning the welfare of the child, make an SGO if they consider that an order should be made, even if no such application has been made. When considering making an SGO, the child's welfare is the court's paramount consideration, and the welfare checklist in Article 3(3) of the Children Order applies.
Paragraphs (7) onwards set out the application process. Applicants must give 3 months' written notice to the authority of their intention to apply for the order. The only exception to this is where a person has the leave of the court to make a competing application for an SGO at a final adoption order hearing, in which case the 3 month period does not apply. This is in order to prevent the competing application delaying the adoption order hearing.
On receipt of notice, the authority must then investigate and prepare a report to the court about the suitability of the applicants to be special guardians and any other relevant matters. It is intended that regulations may prescribe matters to be covered in the report. Paragraph (11) provides that the authority may arrange for someone else to carry out the investigation or prepare the report. Where the child in question is being looked after by an authority, paragraph (10) places a duty on the authority to prepare the report for court in accordance with prescribed arrangements. Such arrangements may, for example, include that the report is considered by a Panel prior to its issue to the court to ensure that a proper assessment process has been followed and that all relevant matters have been considered and included in the report. Paragraph (12) provides that the court may not make an order unless it has received a report covering the suitability of the applicants.
Special guardianship orders: making – Article 14B
New Article 14B will provide that before making an SGO the court must consider whether or not to vary or discharge any other existing order made under Article 8 of the Children Order (such as a contact order or residence order) and also whether a contact order (for example, to enable continued contact with the child's birth parents) should be made at the same time as the SGO. The court may also, on making the SGO, give leave for the child to be known by a new surname and grant leave for the child to be removed from the United Kingdom for a period longer than three months.
Special guardianship orders: effect – Article 14C
New Article 14C sets out the effect of SGOs. Paragraph (1)(a) awards the special guardian parental responsibility for the child. Subject to any other order in force made under the Children Order, a special guardian may exercise parental responsibility to the exclusion of others with parental responsibility for the child apart from another special guardian (paragraph (1)(b)). An exception applies in those circumstances where the law provides that the consent of all parties with parental responsibility may be or is required (for example, the sterilisation of a child) (paragraph (2)(a)). Paragraphs (3) and (4) provide that while an order is in force the child may only be known by a different surname or be removed from the United Kingdom for longer than three months with the consent of all those who have parental responsibility, or with the leave of the court.
The intention is that the special guardian has full responsibility for all the day to day decisions about caring for the child or young person and for taking decisions about their upbringing. However, the order retains the basic legal link with the birth parents, unlike adoption. They remain legally the child's parents, though their ability to exercise their parental responsibility is limited. They retain the right to consent, or not, to the child's adoption or placement for adoption (paragraph 2(b)). Paragraph (5) provides that the special guardian must also take reasonable steps to inform each parent of the child or each guardian of the child, if the child dies.
Special guardianship orders: variation and discharge – Article 14D
New Article 14D provides that, unlike adoption orders, SGOs can be varied or discharged on the application of:
	the special guardian/s;
	the child's parents or guardian (they may only apply with leave of the court and leave is to be granted only if there has been a change of circumstances since the order was made);
	any step parent who has parental responsibility by virtue of Article 7(1A) (with the leave of the court, to be granted only if there has been a change of circumstances);
	anyone who had parental responsibility immediately before the SGO was made (with the leave of the court, to be granted only if there has been a change of circumstances);
	the child (with the leave of the court);
	if a care order is made in respect of the child, the authority can apply to discharge the SGO; or
	anyone who has a residence order in respect of the child.
Paragraph (2) provides that the court may, during any family proceedings in which a question arises about the welfare of a child who is subject to an SGO, vary or discharge the order in the absence of an application.
Paragraph (4) provides that where the person applying to the court for leave to make an application is the child, the court may only grant leave if it satisfied that the child has sufficient understanding to make the proposed application.
Special guardianship orders: supplementary – Article 14E
New Article 14E makes supplemental provisions, including allowing the court to set timescales and give directions as appropriate for proceedings involving special guardianship applications.
Special guardianship support services – Article 14F
New Article 14F makes provision for authority support services for special guardians, children subject to special guardianship orders, their parents and others. Each authority must arrange to provide support including counselling, advice and information, and such other services as are prescribed in regulations (paragraph (1)). Paragraph (2) provides that the power to make regulations under paragraph (1)(b) is to be exercised so as to secure that authorities provide financial support. An authority must, at the request of a relevant child, their current or prospective special guardian or parent, or any other prescribed person, carry out an assessment of that person's needs for special guardianship support services (paragraph (3)). “Relevant child” and “prospective special guardian” are defined in paragraph (4). It is intended that Regulations will be made to ensure that authorities put in place a range of support services. Paragraph (5) gives authorities the discretion to carry out an assessment of need for support services at the request of any person other than those specified in paragraph (3).
Paragraphs (6) to (13) govern the assessment process and, where support services are to be provided, the arrangements for their provision. Paragraph (7)(a) provides that the duty to provide services assessed as needed will apply to any of the categories of persons specified in paragraph (3)(a) to (d) in respect of whom an authority has a duty to undertake an assessment. Sub-paragraph (b) will enable additional categories of persons to be prescribed. As with adoption support services, the needs assessment may be carried out at the same time as an assessment of that person's needs for any other purpose (paragraph (12)). Again, the intention is to facilitate joined-up planning and provision of public services support. There is provision for an authority to delegate assessments and the provision of special guardianship support services to another authority or prescribed person (paragraph (11)) if they so desire, to assist with administration of services/efficient use of resources.
Subsections (2) to (5) of section 119 amend Articles 3, 57, 159 and 160 of the Children Order. Subsection (2) amends Article 3 to apply the welfare checklist to special guardianship applications. Subsection (3) amends Article 57 to enable the court, where in any care or supervision proceedings it makes an SGO, to also make an interim supervision order with respect to the child if it considers it necessary to do so to satisfactorily safeguard the child’s welfare. The court may do so if it considers an SGO is the better option for the child but the child has not lived with the special guardian for at least one year. This will mean the authority must continue to safeguard the child’s welfare during the period of the interim supervision order and remain involved in cases where the child has not lived with their special guardian for at least a year before the order was granted. Subsections (4) and (5) amend Articles 159 and 160 to make provision about the appointment of guardians by the court for children after the death of a special guardian.
Minor and consequential provision about special guardianship is made in Schedule 3. Schedule 3 amends the provisions added to the Children Order by the Children (Leaving Care) Act (Northern Ireland) 2002, that is, Article 35 (persons qualifying for advice and assistance), Article 35A (advice and assistance for qualifying persons) and Article 35B (assistance with employment, education or training). The purpose of these amendments is to place a duty on authorities to consider whether to provide advice and assistance to former looked-after children aged between 16 and 21 subject to SGOs, including support for employment, education and training.  Where the authority determines the child is in need of advice and assistance that the special guardian cannot give him, the authority is placed under a duty to advise and befriend him and may also provide him with assistance, for example in respect of education and training.
Schedule 3 also amends Article 179 of the Children Order (effect and duration of orders, etc.) to provide that the making of an SGO discharges any existing care order. However, if the need arises, a care order or a residence order may be made while an SGO is in force. If made, the SGO is not automatically discharged but the authority concerned or person in whose favour the residence order is made will have the right to apply for discharge or variation of an SGO by new Article 14D.