Keeping Children Within the Extended Family: Special Guardianship Orders for Grandparents

In circumstances where Social Services are concerned that a child may be suffering or at risk of suffering  significant harm, there has been an increasing move towards placing the child within the extended family rather than placing them in long term foster care or for adoption. The aim of this article is to assist grandparents who  are concerned about the care of their grandchild by their parents, to the extent that the Social Services where he resides are considering issuing care proceedings through the Family Court and what happens if having obtained a Special Guardianship Order for your grandchild  to live with you, the parents seek to have him returned to their care.

After the parents themselves, usually, but not always, you will be seen as the  most significant family member in the child’s life. If you are honest, you may even admit that the relationship that you have with your grandchild is stronger than with your own child as he or she had flown the nest sometime ago and in any event life was so hectic when you were bringing up your own children.

Until 2005, the only legal order available to you if your grandchild was not being cared for properly for whatever reason and Social Services were considering issuing care proceedings, would be for you to get involved by making an application, for the court to give you permission, to apply for your grandchild to live with you; a residence order or for those much older a custody order. The court then would have looked at your application on its merits before deciding whether you should make the application in the first place. You were also not  entitled to legal aid and therefore would have to be prepared to pay a considerable amount of money to lawyers to see the process through to a conclusion.

The situation today is, if Social Services have concerns that your grandchild’s care is such that he is being harmed significantly or that if he remains living with his parents, that that is likely to happen, they have a duty to step in immediately or later if it persists, depending on what the harm is and issue care proceedings. It is likely that the first time that you are aware of the extent and degree of the level of care your grandchild was receiving, would be when the Local Authority became involved. You should consider at that time if you are in a situation to look after your grandchild, if you are concerned he may be taken into long term foster care or put up for adoption.

What you need to do is to get in touch with Social Services as soon as possible and inform them that you would like to be considered as your grandchild’s Special Guardian. They will need to be informed at least three months before of your intention to be a Special Guardian.  A report will then be carried out of you by them to see if you are suitable. The report is absolutely necessary as the court will not approve you to be a Special Guardian without there being one. Social Services will usually pay for you to see a solicitor for an initial consultation and in some cases, if you are made Special Guardian,  you may also receive funding from them, if it is necessary to ensure that you can look after your grandchild.

The Special Guardianship Order will give you the right to exercise parental responsibility to the exclusion of your grandchild’s parents. That means that you will be able to determine such things as what school he attends and his religious  upbringing. You will also determine how much time your grandchild spends with his parents, usually following the guidance in the initial stages from the professionals.

The order is intended to last until your grandchild reaches eighteen years of age. However, it is open to yourself or either of his parents to ask the court to discharge the order and allow him to return to their care. If you oppose that application you will not be entitled to legal aid and therefore will have to either represent yourself or fund your own representation.

The process is in two stages. The first stage will be for the court to determine whether permission should be granted for the court to consider whether the Special Guardianship Order should be discharged.

At that first stage the court has to be satisfied that your grandchild’s parent(s) has/have made sufficient changes since the order was made, in respect of the concerns that there were when the Local Authority became involved and you became Special Guardian. If there have not been sufficient changes, that will be the end of the matter and the application will fail. If there have been sufficient changes, the court even at this stage, will have to determine whether it is in your grandchild’s interest for him to return to the care of his parents. If he is settled, doing well at school, his emotional needs are being met and he wishes to remain living with you the court may decide that he should remain where he is and the application to have the order discharged will be dismissed at the first stage.

If the court grants permission to determine whether your Special Guardianship Order should be discharged the second stage will then be a much lengthier process, often with your grandchild being separately represented by a guardian and  culminating in a final decision being made by the court some months later.

At Becket Cambers we provide expertise in this area of law, as well as all areas of family law generally and are able to represent clients through the Direct Public Access Scheme. This means that you will be able to instruct  a barrister directly without a solicitor being involved. The advantage to you is that your legal costs will be reduced.