Essay: Special Guardianship Order (SGO)

Special Guardianship Order (SGO) was set out with the aim to provide “an alternative legal status for children that offered greater security than long – term fostering but without the absolute legal severance from the birth family that stems from an adoption order”. (DFE, Special Guardianship Guidance 2005: 3).
This critique on Government Consultation- Special Guardian, (SG) – a call for views July 2015 focuses on SGO process and its application. It also incorporates responses to the review dated December 2015.
Outline of Consultation
The introduction of Special Guardianship (SG) in December 2005 has seen a gradual shift towards the use of this order.
During consultation stakeholders expressed concerns that SG assessment process was not sufficiently robust. It reported existing SG regime failed to cater for the best interest of Looked After children and their families.
The consultation recognised that assessment process was weak. It failed to identify ongoing issues affecting children or their previous experiences (e.g. abuse). Those issues were not then addressed after placement whilst residing in the Guardian’s care.
Bearing those points in mind, the critique focused whether SP was the appropriate permanence route to alternative methods.
1. The Research
The review invited a ‘call for evidence’ from practitioners and members of public. Consultation events took place with various stakeholders including analysis of SG’s data.
Statistical analysis included the use of SGOs and SGOs with Supervision Order (SOs) from Nuffield Foundation and Department of Education.
Previous published research by Jim Wade (November 2014) was analysed.
Recommendations were made from analysis of data from many sources.
1. Response and Review Findings – December 2015
The findings of the report, provided reassurance that the assessment process of guardianship were in the best interests of children “to protect and enhance guardianships ……and to identify and remove problems and poor practice in the system.” (Special Guardianship Findings Dec 2015 : 4).
The review informed SGOs were granted to carers with existing relationship to a child. It suggested with support carers would be able to care for the child until the age of 18.
It recognised that poor assessments of prospective Special Guardians occurred due to pressure of 26 week deadline of Public Law Outline. Risky placements were made requiring SGO’s to be awarded with Supervision Order (SO).
The review found there was inadequate pre and post SGO support. There was no good practice model.
Responses incorporated views from 67 Local authorities (LA) and 30 Private Family Centres.
Responses overwhelmingly confirmed that changes were required to the current SGO to make it workable and permanent.
From the public consultation, a recurring theme appeared. Respondents felt pressurised by their LA’s to become a SG. Wade’s report also stressed the fact that 1 in 5 carers felt “quite severely” pressurised by Local Authorities to become a SG.
SG was regarded as a cheap option.
The data also showed that there were “wide variations in the use of SGOs with East Midlands, ………..the West Midlands seeing the biggest increase in the use of SGO’s between 2013 – 2014, while East of England saw the smallest increase”. (SG Review July 2015:8). No explanation emerged to explain this variation.
The findings recommended many changes to the existing SGO assessment to make it viable.
Legislation , case law and discussion
It is becoming a regular practice for Judges to place SO on families taking out SGO. John Simmonds, Director of Policy Research at BAAF elaborated “If the court is making a SO, the threshold for making that order is significant harm………….that’s an odd position”. (Community Care – July 2017).
Granting SGO with SO meant SG was not being trusted to do a good enough job.
Different types of support including financial help emerged as justifiable requests.
Wade added, “Children in SG placements are no different to children in the care system or those to be adopted”. LA Children, carers, adopters and SG require support to make placements successful.
The review stated “SGOs are permanence orders, awarded on the expectation that the child will remain…..at the heart of assessment and form the basis for the final care plan.” (SG Review: Findings December 2015: 6).
Section 14 A – F of Children’s Act 1989 confirms this provision of protective factors. It places responsibility on the Government to rectify the shortcomings of the current legislation to ensure that failings within the current SGO are addressed in the best interests of children.
S17 places a duty on LA’s to safeguard, promote the welfare and provide services for children in need. S27 requires LA and other organisations to assist in functions derived from S17.
Response confirmed Government will amend regulations and statutory guidance to incorporate changes required to support both the children and approved guardian. Further deliberations are awaited in 2016.
A strong message from the Court of Appeal was whether to or not to make an SGO is of “fundamental importance” to the child – See Re R (a child) (special guardianship order) [2006] EWCA Civ 1748, [2006] All ER (D) 299 (Dec).
In Re S (a child) (adoption order or special guardianship order) [2007] EWCA Civ 54, [2007] All ER (D) 81 (Feb) – one of three cases heard together in February 2007, the other two being Re J (a child) [2007] EWCA Civ 55, [2007] All ER (D) 82 (Feb) and Re M-J (a child [2007] EWCA Civ 56, [2007] All ER (D) 85 (Feb) – the court said:“ The carefully constructed statutory regime…demonstrates the care which is required before making an SGO and that it is only appropriate if, in the particular circumstances of the particular case, it is best fitted to meet the needs of the child concerned.” (Judge John Mitchell New Law Journal Guardianship V Adoption – March 2007)
The Court of Appeal recently ruled how new SGO powers should be used.
Reflection
1. Impact of SGO
The consultation did not address the impact of SG on Looked-After Children currently awaiting a home. Due to rise in SG, it was reported that “numbers of adoption has dropped. In the 3 months to June 2014, there were 960 initial decisions to place a child for adoption, compared with 1,830 in the 3 months to September 2013”. (BBC News UK May 2015).
Andy Elvin, Chief Executive of TACT , states “the rise in SG could be due to recent adoption judgments making legal departments and social workers nervous about adoption orders ,…………………..recommending adoption in court.” (Community Care – July 2015).
Rulings made by Sir James Munby in September 2013 Re LJ at Re B-S (Children) [2013] EWCA Civ. 813 and from Mr Justice Keehan in January 2013 Re Northamptonshire County Council V AS and Others (2015) EWHC 199, have proved to scale down adoption and children with no immediate SG waiting longer in care.
“SG is not, however a replacement for adoption………………………………SG cannot do this” (Brayne, July 2014, Page 335).
Articles 6 and 8 of the European Convention on Human Rights states that Fundamental Freedoms may not be breached in accommodating and removing children from their homes.
The response failed to address that although parents and others required the leave of the court to apply for a residence order after an SGO had been granted, no leave was required to apply for S8 orders for contact, if leave had not been required before.
Lord Justice Wall pointed out “The need to invoke S91 (14) to protect special guardians and children from the anxiety imposed by the prospect of future litigation is a possible weakness to the scheme… In this respect, SGO does not always provide the same permanency of protection as Adoption”. (Law Journal – 23 March 2007).
A family tie does not guarantee a successful placement. Wade’s report highlights the fact that SG is increasingly used for children who “can’t be described as being settled with their carers”.
2. Social Workers and Service Users
Until full deliberation becomes available and recommendations implemented, Social Workers are left in a confused state as to either pursue SG or adoption as permanence route.
Children and families are left unsettled and waiting longer with numbers of children in care rising and adoption dropping.
SG has the potential for children to be placed in a risky home. SG as currently constructed might become a questionable practice.
3. Cost implications
SG is reportedly a cheaper option to manage and place looked after children. However, with the greater risks come a greater risk of breakdown and the requirement for the Local Authority to re-intervene in such cases. SG may be a false economy.
4. Impact on contemporary practices
The SG pressures are leading to shortcuts in the assessment of SG. As a result children are potentially put at risks.
Special needs of Looked after children are not properly addressed post SG placements.
Social workers are challenged to promote SG instead of adoption as a route to permanency. From a social work practice, is this pressure budget driven or a beneficial social policy?
Social workers would have to manage different regimes for SGs, adopters and foster carers.
SG kids are effectively ‘stateless’. They have a different and challenging position in society which will be unsettling to them. More support and supervision by practitioners are inevitable.
Conclusion
Children’s Minister Edward Timpson commented that the review “provided a clear rationale for creating a stronger, more robust assessment framework for potential special guardians which need to be implemented quickly”. This is welcomed.
Baroness Hale, in grasping the true issue with SG commented “The legal status is a means not an end. The end is the successful upbringing of a child”. (Law Journal – 23 March 2007).
Special Guardianship is but one of the tools available to the authorities when determining the best route for permanence for any child in its care. One tool does not fit all. Each case needs to be considered on its merit, to determine whether SG, adoption or other means is the best permanence route.