In October last year, foster carers Anne* and Michael* took in three children under short-term fostering arrangements. When care proceedings concluded, it was decided all three should stay with the couple in a settled, long-term foster placement.
But although two subsequent looked-after children reviews recognised the siblings were happily settled, Anne and Michael – who fostered with an agency – experienced pressure to take on a more permanent legal arrangement, called a special guardianship order.
The couple were told they would need to become council foster carers or special guardians, even though both went against their wishes and, in their view, the children’s welfare.
Anne and Michael’s situation is not unusual, according to social workers and fostering providers. Special guardianship orders are on the rise and attracting attention.
According to the latest government figures, use of the order has risen a massive 158% since 2010, while last week ministers ordered a review of special guardianship, concerned it is being misused in some local authorities.
At Community Care Live an expert panel will discuss whether special guardianship orders are being misused and give guidance on how social workers can best use them to ensure good outcomes for children.
Concern and unease
An alternative to adoption, which is still regarded as a draconian last resort by some family courts, special guardianship orders became law in 2005. The private law order appoints one or more individuals to be a child’s ‘special guardian’, giving them parental responsibility, and the child a legally secure placement, without severing the legal relationship with birth parents.
The orders have undoubtedly helped many children enjoy permanent placements. They are used by kinship carers wishing to take more responsibility or foster carers looking after children in settled, long-term placements.
However, against a backdrop of budget cuts and increasing complexity and pressure when trying to achieve permanence for children, concern and unease about special guardianship seems to be rising just as quickly as the orders themselves.
So, just where is this growing concern coming from and what is it based on? The charity TACT has publicly expressed doubts about the growth of special guardianship, particularly following the 2013 judgement Re B-S, which ruled that social workers should consider all alternative options before adoption. It is often cited as the reason for a more than 50% drop in the number of placement orders and some of the rise in special guardianship orders.
The charity believes some authorities are pursuing special guardianship too aggressively, which is supported by claims from the National Association of Fostering Providers that councils are trying to break up foster placements by pressuring carers to take out (cheaper) special guardianship orders. One social worker likened this practice to blackmail.
Jim Wade, of York University, whose analysis of special guardianship was published in 2014, is keen to point out that special guardianship is achieving permanence very successfully for many children and families. He concedes, however, that since the study, which dealt with orders made between 2005 and 2012, the order has “clearly taken a pathway that hadn’t been fully appreciated at the time”.
Community Care has been shown letters from councils to foster carers and independent fostering providers, informing them their fostering placements will be considered for special guardianship orders. One letter, sent to foster carers from an authority in the south of England, read: “I am very pleased to hear about the progress that Child X is making in your care and thank you for your continued commitment to nurturing and care…
“We share a common interest, in that we want the very best care and outcomes for our children and are always seeking permanent options for them. As such, we would like you to consider becoming special guardianship carers for Child X.” The letter then went on to explain special guardianship and the process carers would go through.
Pressure from councils
It is also understood that local authorities are making sure that foster carers know a special guardianship order is on the cards, in some cases even before a placement has been made. In the more extreme examples, it has been reported that local authorities have even threatened to move children from foster carers if they did not apply to become special guardians.
Harvey Gallagher, chief executive of the National Association of Fostering Providers, says some authorities have a policy that special guardianship is on the cards for, “any foster carer, any child, any situation”, while some use a ‘one model fits all’ approach and try to fit the child to the placement option, rather than the other way around. Indeed, Gallagher hears accounts of this pressure being exerted at least a couple of times a month and “all over the country”.
Cathy Ashley, chair of the Family Rights Group, called practices where carers might be pressurised for financial reasons rather than child welfare, “hugely concerning”. Even in Wade’s study, this pressure was felt ‘quite severely’ by about one in five carers.
Packages of support
As cash-strapped councils attempt to balance their books, some experts believe special guardianship is attractive because it is cheaper than long-term fostering (see box), yet lacks the finality and resource-intensive assessment process of adoption. But the cash injection of £19m to support adoptive families has highlighted the lack of support for special guardians.
“A pair of Adidas trainers don’t cost a third less because you happen to have a special guardianship order,” notes Nigel Priestley, a senior partner at Ridley and Hall solicitors. He has seen and heard tales of councils encouraging kin carers to make an application for special guardianship, sometimes even funding it and paying for their legal advice.
Gallagher says support packages will have a financial element, but only for a limited time. “It doesn’t make any sense at all,” he says. “The very reason why you think this child in this home with this carer would be good for permanence is because of all the things that have got them to that stage to make it work, so why would you take them all away?” he asks.
There is also a gulf between the support foster carers and special guardians can expect to receive. Looked-after children and foster carers are protected by statutory obligations, which rarely extend to special guardian placements. For example, both foster carers and children in care can expect to have a relationship with their own social worker.
“You have the same group of children, but their legal order has an impact on what support they are given,” adds John Simmonds, director of policy, research and development at the British Association of Adoption and Fostering.
Nerves about adoption
Andy Elvin, chief executive of TACT Fostering & Adoption, said the rise in special guardianship could be due to recent adoption judgements making legal departments and social workers nervous about adoption orders, either for fear of not being granted them or being criticised for recommending adoption in court.
“They’ve found judges are willing to grant special guardianship orders,” he says. “From a purely cynical local authority point of view you need to reach permanence for the child. If it’s a choice between special guardianship and adoption, an SGO is going to take less time, cost less and you’re more likely to get it granted. Why wouldn’t you do it?”
He adds: “They want [carers] to take special guardianship orders because they want them to be in a cheaper placement. They are under pressure to get their numbers of looked-after children down, and one of the ways of doing that is to convert foster placements to special guardianship.”
Concern about the way special guardianship is being pursued has drawn attention to the way special guardians are assessed. The apparent ease with which an order can be placed makes sector leaders nervous about the implications for children and families.
Elvin draws comparisons with the process for becoming an approved adopter or foster care, saying the assessments are thorough and like a “very intrusive ‘This Is Your Life’”. This process does not exist for special guardianship. Elvin warns: “If you’re not doing this with the people who take out the orders, if you’re not digging into that, the likelihood is that it is going to come and bite you.”
This is of particular concern, he adds, with kinship care arrangements, which offer “no guarantee” that a blood-tie will make a placement more successful for a child who has suffered abuse or neglect. Simmonds agrees: “Are we confident that because these are family members they have the capacity and competence to look after these children for the rest of their lives?”
Wade claims special guardianship is increasingly being used for children who “can’t be described as being settled with their carers”, and may only just be moving in with them. “There’s no way a family could get an adoption order without a period of six to nine months where the child lived with them under the supervision of the council, but that can happen with special guardianship.”
It has also become fairly common for judges to place supervision orders on families who have recently taken out a special guardianship order, experts tell Community Care. However, with the threshold for a supervision order being significant harm, this is an increasingly precarious position for families.
Simmonds says this means the order is being placed “in the absence of any direct evidence” that the placement will work. “If the court is making a supervision order, the threshold for making that order is significant harm. There’s a bizarre connection that on the one hand ‘yes we have confidence that these people are in the best possible position to safeguard, and provide for, a child’s needs, but the local authority needs to supervise that’. I do think that’s an odd position,” he says.
Calls for comparable support
Every expert consulted by Community Care agrees special guardians should have access to at least the same financial support as adopters. This, they say, would go some way to alleviating concerns about the viability of special guardian placements.
“We need to return to a situation where the framework for providing adoption support continues to be applied to special guardian situations as well,” argues Simmonds. Wade adds that children in special guardianship placements are “no different” to children in the care system or those who go on to be adopted.
For now, the government appears to be taking heed of the growing concerns, which, Wade stresses, do apply to only a minority of the special guardian placements taken out each year. But it seems evident that review and reflection is essential if special guardianship success stories are to continue being the norm.
*Names have been changed