What’s the difference between a Special Guardianship Order and a Child Arrangements Order?
Many people presume that a parent will remain in a child’s life, no matter what. However, in some circumstances, it would be harmful for this to happen.
Special Guardianship Orders and Child Arrangements Orders both aim to keep the family unit as it is by maintaining the birth parents as the child’s legal parents but not necessarily as their guardians. However, they do have their differences.
What is a Special Guardianship Order?
Special Guardianship Orders (SGOs) are made under private law and appoint a person as the Special Guardian of a child. They can be appointed to multiple people for one child.
SGOs provide the Special Guardian with parental responsibility for the child and allow them to override the decisions and wishes of others who hold parental responsibility for the child, such as the legal parents.
The initial aim of a Special Guardianship Order was to bridge the gap between a Child Arrangements Order and adoption. It was hoped that SGOs would provide children with a stronger degree of permanence than a Child Arrangements Order.
Special Guardianship Orders are commonly made regarding children who:
- Are to remain in the care of the wider family
- Require minimal disruption from parents in relation to decisions about their care and welfare
- May need a longer-term level of support from the Local Authority
How are Special Guardians decided?
If the Local Authority has been proactive throughout the pre-proceedings, potential Special Guardians may have been identified. However, this is not always possible as proceedings may have been issued straight away. In these circumstances, a Special Guardianship Order may reach the nominated friend or family member/s unexpectedly.
The Local Authority will carry out viability assessments on those who may be able to care for the child/children. If the proceedings have already been issued, parties, i.e. the parents, can provide suggested carers through their position statements filed with the court.
Special Guardianship assessments can take around 12 weeks to complete.
When deciding on Special Guardianship Orders, the court must take into account the wishes and feelings of the child which will be considered in the light of their age and understanding. SGOs must also consider the child’s physical and emotional needs and the likely effect that any change in circumstances would have on them.
The age, sex and background, as well as any characteristics the court considers relevant, will be looked at. They will also consider any harm that the child has suffered or could be at risk of suffering. The court will take into account how capable each parent is of meeting the child’s needs.
When considering an SGO, the Local Authority will check what support services the Guardian and child will need to ensure a robust plan is in place.
Who can apply to be a Special Guardian?
To be assessed as a Special Guardian, you must be over 18 and cannot be a parent of the child. To apply for a Special Guardianship Order, one of the following criteria must be met:
- You are a Local Authority foster carer who the child has lived with for one year before the application
- The child has lived with you for three of the last five years
- You are the guardian of the child
- The child is in the care of the Local Authority
- You already have a Child Arrangements Order or a Residence Order for that child
- You are a relative of the child and they have lived with you for at least one year before the application was made
Foster carers are frequently encouraged to become Special Guardians as it can provide a strong level of stability to the child under their care.
What decisions can a Special Guardian make?
Special Guardians can make decisions about where the child is to go to school or decisions about their day-to-day care. They will need to obtain consent from those with parental responsibility if they wish to remove the child from the country for more than three months or change their surname.
What is a Child Arrangements Order?
Under a Child Arrangements Order, those with parental responsibility can make day-to-day decisions about a child. However, they must involve any other party with parental responsibility when it comes to big decisions that will affect the child, such as the choice of school or decisions around their care.
This order is most commonly issued to the parents of a child after they have separated or divorced.
A Child Arrangements Order will generally decide where the child lives, where the child spends time and when, and what other types of contact take place. Every arrangement will vary as the order is made in the best interests of the relevant child. They are also private law orders and therefore cannot be made in favour of a Local Authority.
Parents can apply to the court to discharge a Child Arrangements Order which means it is easier to try and change an arrangement already in place. They are therefore less secure than a Special Guardianship Order.
Applying for a Child Arrangements Order
Anyone that has parental responsibility can apply for a Child Arrangements Order. If a child is the subject of a Care Order, the Local Authority must promote contact between the parents and the child.
Parties may be provided with financial assistance from the Local Authority where a Child Arrangements Order is granted. However, these payments are means tested and are also discretionary.
How long does a Child Arrangements Order last?
A Child Arrangements Order will remain in place until a child turns 16 years old unless it states otherwise. Any element of the order relating to ‘live with’ will be legally binding until the child turns 18.
Need advice about child contact? Contact our child law solicitors
Our child law solicitors recognise that every relationship is different and that there is no one-size-fits-all approach when it comes to child contact.