A rise in the number and proportion of special guardianship orders being made with supervision orders attached reflects family courts’ lack of trust that local authorities will provide adequate support to families, according to experts.
More than a quarter (29%) of all the special guardianship orders made last year had a supervision order attached, a Community Care investigation has found.
Of the 4,121 special guardianship orders (SGOs) made in 2014, 1,193 had a supervision order attached, according to the results of a freedom of information request to the Children and Family Court Advisory and Support Service (Cafcass).
The threshold for a supervision order is if a child is deemed to be at risk of significant harm, but Andy Elvin, chief executive of TACT Fostering and Adoption, said that, rather than children being at risk of harm, the rise is a result of “heightened judicial concern” about the lack of post-order support for special guardians.
“What you take from this is that the level of post-placement support in SGOs is, in the eyes of the judiciary, in at least 25% of cases, not appropriate. That is the problem we need to fix, this is just a symptom of the problem.”
The number of SGOs made with a supervision order attached almost tripled from 2012 to 2014, the figures showed, while the numbers of those without a supervision order rose by around 50%.
Figures up to 31 September 2015 indicate the practice may increase again this year. So far, 922 of the 3,148 SGOs placed this year had a supervision order attached, which is nearly 30% of all the orders made.
Nigel Priestley, a senior partner at Ridley and Hall solicitors who specialises in kinship care cases, accused the courts of “crossing their fingers and hoping for the best” when approving the permanence option.
He said current arrangements were “a halfway house that helps nobody” and that judges needed to “think again” about using the order as a means to guarantee support.
In 2012, 437 special guardianship orders (SGOs) had a supervision order attached to them, but this increased by 173% to 1,193 in 2014.
“If you think there is a possibility of significant harm in an SGO placement, you don’t make the placement. A supervision order is not going to prevent significant harm,” Elvin said.
He claimed this was a misuse of a supervision order, but it “speaks of a lack of trust that… the families are going to get [support]”.
Anthony Douglas, chief executive of Cafcass, said the court advisory service was “concerned at the number of dual orders”.
He said: “It is clear that some – not all – SGOs have been made without sufficient assessment and safeguards. Normally, the issue after an order is made is around the support for the carer and placement, not an oversight because of concern.”
Priestley said: “With pressure upon social services budgets and personnel, the risk is that where there is a supervision order, frankly it will drop a long way down the menu in terms of who will do the work and when. Lots of local authority children’s services departments are overstretched and if courts have got concerns, real concerns, a supervision order isn’t the way forward.”
‘Crossing their fingers and hoping for the best’
He recommended that care orders were the best way to guarantee effective support. He referred to cases where relatives had been asked to take out SGOs without legal advice, or knowing fully what they had agreed to.
“I think what the figures show is that there is a risk that what the courts are doing is crossing their fingers and hoping for the best…I think that the courts need to think again and that these figures should be a wake-up call to all of the parties involved.”
A spokesperson for the Judiciary said: “Each case will be decided on its individual facts, but it is clear that the courts have been asked to make more Special Guardianship Orders in recent years.”
He added that the judiciary is awaiting the results of the Department for Education’s review of special guardianship, and said: “In October Cafcass issued a note on the use of special guardianship. While not endorsing its content, the President of the Family Division has made High Court and Designated Family Judges aware of it.”
Elvin said a supervision order was “next to being meaningless” and the way to stop it being used in this way was to ensure post-placement support for SGOs was the same as for adoption or foster care.
“Judges are using what is at hand to try and assure themselves that the placement support will be [there]. But the placement support should just be there anyway, it should just be a given, and the judiciary should be able to trust that if they make an SGO that the requisite level of post-placement support will be available to that placement as and when it is needed,” Elvin said.
He added: “It comes back to the same old issue that we keep highlighting, these are exactly the same cohort of children, they just happen to be placed with grandparents rather than foster carers or adopters. It doesn’t mean that the placement doesn’t need the same level of support it would have needed had it been adoption or fostering.”
Special guardianship orders and supervision orders
An SGO grants parental responsibility to one or more ‘special guardians’ while not severing the legal bond with the birth parents. It is legally binding and its use as a permanency option has risen by 193% since 2010 as local authorities wrestle with costs and the Re B-S judgment, which was perceived to have risen the bar in terms of achieving adoption for a child.
A supervision order can only be granted if a court is satisfied “that the child concerned is suffering, or is likely to suffer, significant harm” and that the harm is attributable to either the care given to the child or the child being beyond parental control.
A supervision order guarantees, often for 12 months before it is applied for again if necessary, some level of local authority involvement. A supervision order can be extended for a maximum of three years from when it was first made.