The family court is currently under a lot of pressure, mainly because there are a lot more cases being heard. To help make the process work better for everyone, including children, the lead judge in the family court for England and Wales has directed that working groups of different experts look at key parts of the process and make recommendations for improvement.
One of these working groups, the Public Law Working Group, looked at special guardianship orders and the lead judge of the family court has agreed with the recommendations explained here.
There are three groups of recommendations. First are those that can be put in place quickly. Second are those that will help create new guidance for professionals. Third are recommendations that could change the law.
Brief summary of recommendations
Four recommendations that can happen quickly are:
- Assessments: Special guardian assessments must improve. They need to focus on the relationships between children and potential special guardians. There needs to be more effort made to ensure the children live with their potential special guardians before the special guardianship order is made. The assessments should also show what support special guardians need to help care for the children.
- Training and preparation: There needs to be better training and preparation for potential special guardians before the special guardianship order is made.
- Supervision orders: Supervision orders should not have to be made with special guardianship orders unless in exceptional circumstances. This is because assessments should be good enough to ensure special guardians are able to safely care for the children and because support for special guardians should be readily available.
- Contact: There should be better understanding and support around the children’s contact with their parents.
Four recommendations that will take longer to make happen are:
- Law and statutory guidance: The law, regulations and guidance around special guardianship orders will be reviewed and changed.
- Process changes: There are also other parts of the process that need to be reviewed and changed. First, there needs to be a review of fostering regulations. Second, there needs to be a legal way for children to live with their potential special guardians before the special guardianship order is made to make sure it is right for them. Third, local authorities should do everything they can to find the right people to become special guardians for children. Fourth special guardians should be legally entitled to more support.
- Legal representation: The way potential special guardians are legally represented in court, including their legal fees, is to be examined to make sure they are fair.
- Family support: Families should be properly supported to stop cases having to go to court. This includes finding ways to help wider families support the children and their parents.
Below is a summary of the issues that led to the above recommendations.
- Children who cannot live with their parents need to have a new permanent home as soon as possible so they can be part of a family. Special guardianship orders are one way of doing this.
- Before a person can become a special guardian, the local authority must assess that they can safely care for the child for the rest of their childhood.
- There are two ways for a special guardianship order to be made. First, when a child has been living with a relative or foster carer for a year, the carer can apply to the court for a special guardianship order to make the situation permanent. Second, if the child’s case is in public care proceedings because the local authority believes they are not being safely cared for, the court can make a special guardianship order so the child can permanently live with other carers who then become special guardians.
- A special guardian assessment must be completed by the local authority and given to the court before the special guardianship order can be made.
- One key issue is that assessments are easier to complete if the children are living with their carers while it happens. When the court has to make a special guardianship order during public care proceedings, the children are often either in foster care or living with their parents when the order is granted. Some special guardianship orders are being made to people who do not know the children very well. It is really hard for thorough assessments to be completed when the children are not living with the carers or when the carers do not know the children. There is no legal way at the moment to ensure children live with their potential special guardians before the order is made and this problem is hard to solve using the law we currently have.
- Assessments and support plans are not always of good quality and this is putting children and carers at risk.
- Supervision orders, which is a court order that requires local authorities to ‘advise, befriend and assist’ the children for a set period of time at the end of care proceedings, are being made alongside special guardianship orders. This is worrying because it is a ‘red flag’ that local authorities or the courts are not confident that either the assessment is good enough, the special guardianship order will be successful, or that support will be provided by the local authority to the special guardians.
- Special guardianship orders are a permanent order and working out where a child should live for their whole childhood is important. That means assessments and support plans should be thorough. They should be similar to ones that happen with foster carers or adopters. They should not be rushed. Support plans should look at support for the whole of the child’s childhood because children change as they grow up. Special guardians also change as they get older.
- At the moment contact between the children and their parents is not being thought about enough in support plans. This must improve and support should be offered as needed.
Grandparents Plus’s response to the recommendations
Grandparents Plus agrees that special guardianship order assessments should improve. After positive initial assessments and once a potential special guardian has been identified then the relationship between the child and potential special guardian should be supported to allow a thorough assessment to take place. This will require local authorities to ensure that potential special guardians are given clear information and advice about their options and entitlements, access to free and independent legal advice, and time to understand the role of a special guardian and the needs of the child and the potential special guardian now and in future. Assessments will improve when there is a change in culture where potential special guardians are valued, respected and supported to make life-changing decisions. Potential special guardians should be made party to proceedings.
Grandparents Plus has heard from kinship carers that they do not receive adequate training. 95% of respondents to our 2019 annual survey told us they were not offered any preparation before taking responsibility for the child. Preparation and training for special guardians should be specially designed taking into consideration the specific issues of special guardianship families. They should be developed using specific research into special guardianship families and not generic research into fostering and adoption.
Supervision orders should not be needed if assessments are done properly (as above) unless in exceptional circumstances. Support should be offered for the duration of the special guardianship order. If these two things happen supervision orders will become redundant in the majority of cases.
Assessment of contact should also consider the ongoing relationship between the special guardian and parents, especially when they are closely related. Support for contact should depend on the specifics of each case but it should also be freely available for all special guardianship families because circumstances do change over the course of the order.
Special guardians, kinship carers, parents and children should play a major role in all reviews of legislation, policy and process. Review of special guardianship orders should be part of a larger review of all permanence options for children to ensure wider families are considered more holistically in permanence plans including adoption and long-term foster care.
There needs to be a full review of family and friends foster care to prevent family and friends being excluded due to being held to the same criteria as stranger foster carers. The family and friends relationship with the children and the needs of the children should play a significant part in any assessment and decision-making. We would not support interim special guardianship orders without a lot more information. Family and friends should be legally entitled to be involved in supporting families and protecting children as soon as child protection concerns are identified, the welfare of the children should overrule the parents right to prevent family being involved in the child protection process. Support for special guardians should not have access criteria, should last for as long as needed and be available for the duration of the children’s childhoods. We agree with the support recommendations from the Family Rights Group mentioned in the document.
All potential special guardians should be entitled to legal aid straight away. This should be a swift recommendation not a long term one.
Family group conferences (FGC) should happen as soon as child protection concerns are identified. FGCs should not only identify family and friends who could be potential special guardians, but they should also identify wider family and friends who can help families stay together and prevent the need for care proceedings in the first place. FGCs should also be used a lot more when special guardian families require support. It is possible that special guardian support networks would be sufficient to support them without the need for statutory intervention. If FGCs are not being used at this point then there is a risk these support networks are not being identified and properly utilised.
We should also consider post-18 support for special guardian families. We strongly recommend special guardian children and their families are offered additional support until they are 21 or out of full-time education, whichever is latest.