Concerns have been raised about whether Special Guardianship Orders are being made in the best interests of both children and their carers.
A report commissioned by the Nuffield Family Justice Observatory said that relatives are often best placed to provide a secure, loving home for children who, for a variety of reasons, are unable to be cared for by their parents.
"However, the increasing use of Special Guardianship Orders to place children with relatives following care proceedings, where a child did not have a pre-existing strong relationship with the prospective guardians, has raised concerns about whether such decisions are being made in the best interests of both children and their carers," said the report.
The review concludes that special guardianship continues to be an important permanence option for the right child and the right family. Yet it also highlights the lack of careful assessment of, and preparation and ongoing support for, special guardians, who are often asked to care for children with complex emotional and behavioural difficulties.
"When Special Guardianship Orders are made in such circumstances, there is a higher risk that a child’s placement will break down," the report adds.
A Special Guardianship Order gives one or more individuals, usually family members, parental responsibility for a child who cannot live with their birth parents. An SGO enables the person who holds the Order to exercise that responsibility ‘to the exclusion of all others’, but the basic legal link between the child and their birth parents is preserved.
The use of SGOs is increasing with more than 21,000 children having been placed with special guardians since 2010.
However, the use of SGOs in situations where a child does not have a pre-existing relationship with the prospective guardians, and where these guardians identify themselves after care proceedings have already started, has raised questions about the lack of time, resources and evidence for local authorities and the courts to ensure the Order being made is clearly in the best long-term interests of the child, the report warns.
In July 2018, the former President of the Family Division invited the Family Justice Council to draft authoritative guidance to assist courts in making SGOs and specifically to address the issues raised in the Court of Appeal judgment in the case of Re P-S.
In Re P-S the Court of Appeal was asked to consider whether the judge who heard the original care proceedings had been wrong to decline to make SGOs in favour of the paternal grandparents before the children had lived with them. Instead the judge made care orders to enable the local authority to have more time to assess the suitability of family members as special guardians. The judge had relied on ‘informal’ guidance’ drafted by Mr. Justice Keehan to address the problem of prospective special guardians being identified after care proceedings have commenced, when proceedings are required to be completed within 26-weeks unless an extension is considered necessary.
Five focus groups were held for the report with a total of 44 family justice practitioners including lawyers, social workers and Cafcass Guardians which raised a number of concerns.
- Kinship care is not typically identified as requiring the same level of skills and knowledge as fostering or adoption although it was recognised to be equally demanding.
- The capacity of the local authority workforce and resources are significantly stretched. When core processes such as viability assessments are allocated to children’s social workers who have little experience, skills and support of family placement issues, this can create challenging problems in robust care planning.
- Preparation for prospective special guardians was described as ‘almost non-existent’ and ‘ad hoc’.
- There is no regulatory requirement to ensure preparation and/or training for prospective special guardians is available as there is with adoption or fostering.
- There was widespread dissatisfaction and frustration with the assessment process.
- Courts have a duty to complete proceedings within 26 weeks, but family members are often not identified until after proceedings have commenced. This results in unworkable and professionally compromising timescales and a significantly lower standard of assessment for family members compared to other placement options such as adoption or fostering.
- Insufficient consideration is given to the prospective special guardians’ existing relationship, experience and knowledge of the child and the consequences of this.
- The wishes, feelings and needs of the child played little if any part in decision making.
- The stress and confusion of prospective special guardians when they find themselves in court with little, if any, legal or other forms of support. This can be amplified by any disagreements with the child’s parents or other family members.
- The focus groups were unanimous in their view that the 26-week timescale had significantly affected the full and proper consideration of the suitability of family members when making an SGO.
Practitioners called for major reform of the process for making an SGO including a robust system of preparation and training for prospective special guardians and developing the skills and knowledge of children’s social workers in kinship placement.
Assessments should not be concluded until sufficient preparation has been completed and the prospective carers are fully aware of what the Order means. The making of the Order should be robustly evidence-based and child-centred and not compromised by the 26-week timescale.
A solution also needs to be found to the issue raised in Re P-S about the form of an Order that would allow sufficient time for the prospective special guardian/s and child to live together before an SGO could be made.
"We conclude that special guardianship continues to be an important permanence option ‘for the right child and the right family’. But for this to be so, the system as a whole must operate in a coherent, timely, evidence-informed way and this requires changes in mindset, regulations and protocols," said the report.
There has been a major shift in focus from the original policy framework for SGOs being made as a result of a private law application by the child’s current and established carers, to the extensive use of the court’s power to make the order under ‘its own motion’ during care proceedings. It warns that SGOs were not primarily designed to be used in this way, and this presents challenges for local authorities and the courts in providing special guardians with adequate preparation and support for the long-term consequences of this life-changing responsibility.
"As it currently operates, special guardianship is also not appropriately aligned with best practice in other forms of child placement such as adoption and foster care – a serious issue when children share similar issues such as abuse and neglect and the birth parents’ lack of capacity to safely and responsibly care for their child," the report concludes.
Special guardianship: a review of the evidence