Family placement – special guardians: special report

A local authority could face a legal challenge over the level of financial support it gives to kinship carers who become special guardians
Huddersfield family law solicitors Ridley and Hall are taking advice on the possibility of challenging Kirklees Council’s decision to pay its special guardians allowances at a lower rate than equivalent fostering allowances.

The firm says many authorities are struggling to decide how much to pay their special guardians. But what exactly are special guardians and why is there a lack of clarity about allowance levels?

What is special guardianship?
In December 2005, the Adoption and Children Act 2002 introduced special guardianship to provide legal permanence for those children for whom adoption is not appropriate. It gives the carer responsibility for all aspects of caring for a child, who will no longer be looked after by the local authority.

It is meant to help build a permanent relationship between child and carer and be legally secure but will also preserve a basic link between a child and their birth family.

Special guardianship will also be accompanied by a range of support services, including financial support.

Why was it introduced?
The Prime Minister’s review of adoption published in 2000, found children generally preferred the security that adoption gave them over long-term fostering. But it suggested there were older children who did not want to make the legal break with their birth family associated with adoption.

It identified the need for an alternative legal status that offered greater security without complete severance from the birth family.

Who will special guardianship suit?
The British Association for Adoption and Fostering suggests the following situations where the orders might be appropriate:
– older children in long term care who wish to retain legal ties with their birth family
– unaccompanied asylum seeking children who need a permanent home here but have strong attachments to their family back home
– prospective carers from minority ethnic groups who have religious or cultural difficulties with adoption as it is set out in law
– kinship care, where members of an extended family may not want to adopt the child but need more clarity about day-to-day decision making.

How are special guardians appointed?
A court can make a special guardianship order following an application from the child’s guardian, a local authority foster carer with whom the child has lived for one year preceding the application or if the child is looked after, by anyone who has the consent of the local authority.

Can special guardianship orders be changed?
Unlike adoption orders, special guardianship orders can be varied or discharged on the application of the guardian themselves, the local authority previously looking after the child, the child or, with leave of the court, the child’s parents.

What kind of support should be provided?
Authorities are required to provide special guardianship support services, to include counselling, advice, information and financial support. Like adoption support, carers are entitled to an assessment of need, with the authority then deciding what level of support to provide.

Why is there a problem with the payment of allowances?
The guidance does not specify how much allowance should be paid, only saying councils should “have regard” to the amount of fostering allowance it would pay if the child were fostered.

Ridley and Hall says Kirklees is paying special guardianship allowance at two-thirds the rate of its fostering allowance but has not explained to it how it set the figure.

The company says many authorities are struggling to determine how much financial support to provide special guardians and the issue needs to be clarified.

Baaf chief executive David Holmes says about 250 guardianship orders have so far been made and although the system is a good one in theory it is probably too early to judge how well it is working.

He points out that carers have no right to receive any support as it is dependent on the result of an assessment. But Holmes suggests difficulties might be created if councils set across-the-board allowance rates rather than focusing on the needs of individual carers and children.

More info
British Association for Adoption and Fostering: briefing on special guardianship

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