ArticleSpecial Guardianship Orders: Challenges and Solutions

Special Guardianship is a legal arrangement that sits at the heart of family law, offering an alternative to long-term foster care or adoption for children who cannot live with their birth parents. For many, it is a lifeline—a way to provide stability and permanence in the wake of trauma or hardship. Yet, while the legal framework surrounding Special Guardianship Orders (SGOs) appears robust, the practical realities often leave guardians grappling with insufficient support, both emotional and financial.

What Are Special Guardianship Orders?

Special Guardianship Orders were introduced in Sections 14A to 14G of the Children Act 1989, coming into effect in 2005. They grant overriding parental responsibility to special guardians, typically relatives or close connections, allowing them to make major decisions about a child’s upbringing. Unlike adoption, however, SGOs preserve the legal link between the child and their birth family.

Since the first reported SGO in A Local Authority v Y, Z and Ors [2006] 2 FLR 41, their use has increased in the Family Courts. Despite this, more children are remaining in kinship foster care rather than transitioning to SGOs or similar arrangements, highlighting potential barriers in the system.

The Legal Framework and Support Services

Under Section 14F of the Children Act, local authorities are required to provide support services to special guardians, as outlined in the Special Guardianship Regulations 2005. These services include:

• Financial support: To ensure guardians can meet the needs of the child.
• Therapeutic services: For children and their guardians.
• Assistance with contact arrangements: Including mediation.
• Training and respite care: To support the guardianship arrangement.

Regulation 6 further specifies that financial support should address issues like the child’s special care requirements or legal costs associated with the SGO. The statutory guidance of 2017 underscores that financial obstacles should not jeopardize a placement’s stability. However, financial allowances are means-tested and often fall short of the fostering allowances offered to unrelated carers.

Judicial Oversight and Case Law

Judicial reviews have been pivotal in ensuring local authorities comply with statutory guidance. In Barrett v Kirklees MBC [2010] EWHC 476 and R (TT) v London Borough of Merton [2012] EWHC 2055, courts ruled that paying SGO allowances at two-thirds of fostering allowances was unlawful. Similarly, in B v Lewisham Borough Council [2008] EWHC 738, linking SGO payments to lower adoption allowances was deemed a ‘radical departure’ from statutory guidance.

The Court of Appeal’s decision in X, R (On the application of) v London Borough of Tower Hamlets [2013] EWCA Civ 904 reinforced the principle of parity between family and unrelated foster carers. Local authorities must provide compelling reasons for any departure from this standard.

The Role of Kinship Carers and Financial Strain

Despite these legal safeguards, kinship carers—often stepping in during crises—face disproportionate financial hardships. Research by the charity Kinship shows:

• Kinship carers are four times more likely to struggle with unpaid bills.
• 8% rely on food banks due to the rising cost of living.

While the Adoption and Special Guardianship Support Fund provides up to £5,000 annually for therapeutic services per child, its future beyond March 2025 remains uncertain. This adds another layer of insecurity for guardians navigating an already complex system.

Private Family Arrangements: A Grey Area

Some kinship arrangements occur without formal public law proceedings, often to prevent children from entering care. These ‘private family arrangements’ can disadvantage guardians financially, as their eligibility for support depends on whether the child is classified as ‘looked after’ under Section 22 of the Act.

Case law, including London Borough of Southwark v D [2007] EWCA Civ 182 and SA v KCC [2010] EWHC 848, has clarified that local authorities cannot avoid their duties under Section 20(1) by leveraging the presence of willing relatives. Yet, ambiguity often surrounds these informal arrangements, leaving many guardians without essential financial support.

Policy Reform: A Glimmer of Hope

The Government’s 2024 Kinship Care statutory guidance proposes overdue reforms, including a £40 million trial kinship allowance. This initiative aims to address ‘certain costs’ associated with settling children into new homes. While encouraging, its scope and implementation remain to be seen.

In addition, family legal aid now extends to SGO applicants, and further recommendations from the Independent Review of Children’s Social Care call for:

• A statutory financial allowance for kinship carers.
• Kinship leave entitlements.
• Comprehensive support plans based on rigorous assessments.

What Can Be Done Now?

Special guardians considering their options should seek early legal advice. Public resources, such as those from the Family Rights Group and charities like Buttle UK, offer invaluable guidance and support. Practitioners, meanwhile, must scrutinize local authorities’ financial packages, challenging any unlawful policies through judicial review if necessary.

Final Reflection

Special Guardianship remains a vital but under-supported pillar of family law. While legislative reforms and case law offer some protection, the lived reality for many guardians is one of financial strain and bureaucratic hurdles. If the Government’s latest initiatives succeed, they could bring much-needed relief to those selflessly stepping forward to provide children with the permanence and stability they deserve. Until then, vigilance and advocacy remain crucial.