Special guardianship orders: are they being used safely?

Keegan Downer was 18-months-old when she was murdered by her special guardian.

A serious case review into the child’s death, published earlier this year, found she suffered more than 150 injuries while living in the home of her special guardian, Kandyce Downer. It concluded that Keegan should never have been sent to live there.

Kandyce Downer was only a distant relative, but the review found Birmingham council had prioritised a special guardianship order (SGO) over an adoptive placement, “irrespective of the circumstances”.

Although SGO placements are safe, secure and appropriate for many children, Keegan’s death, along with two cases in Oxfordshire and Nottingham – both involving children either abused or killed while in the care of special guardians – has once again raised concerns about how SGOs are being used.

An alternative to adoption – still regarded as a draconian last resort by some family courts – special guardianship became a legal order in 2005. One or more individuals become a child’s ‘special guardian’, giving them parental responsibility, without severing the child’s legal relationship with their birth parents.

Unprecedented rise in SGOs

The order has proved popular. Since 2010, amid increasing pressure when trying to achieve permanence for children in care, there has been a 220% increase in SGOs, according to official figures. Experts interviewed by Community Care have previously attributed this unprecedented rise to two main factors.

The first is the 2013 Re B and Re Be-S judgments, which ruled social workers must consider all alternative placement options before adoption. Some authorities and policy experts believe this has raised the bar for adoption, making it less likely a court will approve an adoption order and SGOs, therefore, an attractive alternative.

The second factor, according to fostering experts, is that budget cuts are driving councils to find cheaper ways of accommodating children in care.

In 2015, anxiety around this area of practice prompted the government to order a review of SGOs, while an investigation by Community Care in the same year revealed more than a quarter (29%) of SGOs made in 2014 had a supervision order attached – suggesting courts were concerned about the lack of post-order support available for special guardian families.

Following the government’s review, the assessment process for special guardians has been reformed due to serious misgivings about the quality of assessments.

Social workers are now required to assess a guardian’s capacity to parent a child until he or she turns 18, while also considering their current and past relationship with the child.

Last year, by extending the adoption support fund, ministers made money available for post-placement support for special guardian families.

Continuing concern

Nearly 18 months on, have the changes reassured those concerned about the overuse, and potential misuse, of SGOs? It appears not. Experts tell Community Care they are still concerned about the use of SGOs, with some even admitting the system is so flawed they predict further tragedies.

Others, however, feel people are reacting too quickly to recent serious case reviews, while one academic currently researching SGOs argues special guardianship is no riskier than other placements.

For Andy Elvin, chief executive of the charity TACT, the recent serious case reviews “broadly” represent things more commonly going wrong with SGO placements. He believes these cases “will continue to [crop up] until someone does something sensible about it”.

It is “inconceivable”, he says, that Kandyce Downer – approved to be 18-month-old Keegan’s special guardian – would have been assessed as a suitable foster carer or adoptive parent, adding that children are being placed at risk by the nature of special guardianship assessments.

“SGO assessments just aren’t rigorous enough. It’s not a local authority’s fault, they aren’t being given the time to do them,” Elvin says.

The introduction of the 26-week deadline for care proceedings has reduced the time it takes a child’s future to be decided, but has had a knock-on effect on special guardianship assessments.

Guardians often volunteer late in proceedings, yet still need to be assessed before the deadline. It can also mean family members volunteer without knowing the full implications of an SGO. This is despite, Elvin says, there barely being “a cigarette paper between an adoption order and an SGO legally”.

Insufficient reforms

The government’s reforms were insufficient, he says, while recommendations for more in-depth assessments are not helpful, “if you give someone three weeks” to complete them.

Elvin questions why the government has not taken on suggestions – notably proposed by shadow children’s minister Emma Lewell-Buck in an amendment to the children and social work bill – that placement orders be extended to special guardianship orders. He also asks why the panels that see foster carers and adopters do not also see special guardians.

The government’s changes to SGO assessments have made no difference at all, according to John Simmonds, director of policy at CoramBAAF. Although the changes came in after Keegan’s death, as well as the cases in Oxfordshire and Nottingham, Simmonds still sees risk ahead.

“You can try and up the game on regulation, but if you don’t have the time and resources to do what then needs to be done, they become meaningless, so I haven’t seen any difference whatsoever.

“These are vulnerable children in very vulnerable circumstances – haste does nothing, and the rule of optimism does nothing to help with that,” Simmonds explains.

Changes to the SGO assessment process are just “smoke and mirrors” for Nigel Priestley, a senior partner at Ridley and Hall solicitors. He believes “good social workers are doing proper assessments” already, but feels the system does not “encourage scrutiny” of family and friend placements.

‘Families abandoned’

Post-placement support is Priestley’s principle concern. SGOs save councils money, and this can stem from a belief that, “it isn’t appropriate for children to be in long-term foster care,” he says.

He warns common policies include local authorities paying SGO families an allowance for two or three years and then cutting them adrift. “You are abandoning families; you are abandoning some of the most vulnerable children in society,” Priestley says.

Despite £20m in the adoption support fund allocated for therapeutic support services, there are still concerns that children in special guardianship placements are missing out.

Case law and statutory guidance state that allowances given to guardians should reflect the minimum allowance given to foster carers, but this can still leave special guardian families worse off. The minimum fostering allowance is significantly less than a professional foster care can realistically expect to receive, while enhanced foster carers, who have gone through training and take children with special needs, can receive two or three times more than this.

In many cases, the allowances given to special guardian families are simply not enough for children who have the same needs as those in foster care, but are cared for under a different legal order.

Funding and support

Funding and supporting special guardian families is a key concern for Cathy Ashley, chief executive of the Family Rights Group. However, following high profile tragedies, she is worried about applying “huge generalisations” to SGOs “that we don’t apply to other legal orders”.

She references a recent case in Croydon where a foster carer abused a child. “The response isn’t, ‘the problem is foster care’”, she says. “My worry is that we are jumping in, in relation to SGOs, and tending to make quite sweeping comments based on a very small number of tragic, awful cases.”

Another factor driving concern about SGOs is that, as a relatively new order, they have developed unforeseen uses, such as distant kinship placements and converting foster care placements.

Ashley believes “myths” exist around exactly what SGOs were, and were not, intended to be used for. She also questions whether SGO assessments are criticised because of assessment practice, or just poor practice influenced by the tight 26–week timescale for care proceedings.

Ultimately, she says, support for special guardianship families will become more pressing as SGOs continue to rise: “There will definitely be more breakdowns and in a few cases there will be people behaving in an evil manner. In some of the cases those breakdowns could have been prevented through effective support, and I’m sure we will also see some cases where children could have been [subject to] more effective practice assessments.”

‘Minority of extreme cases’

Judith Harwin, co-director of the Centre for Child and Family Justice Research at Lancaster University, is researching special guardianship and breakdown rates. Generally, she says, the risk is low for most children, and concerns that SGOs are insecure might be the reaction to a “minority of extreme cases”.

Harwin and her team, funded by the Nuffield foundation, have analysed Cafcass national records over the period 2007-2016 to track trends in the use of SGOs and disruption. They found less than 5% of children cared for under an SGO will return to court, following SGO disruption, within five years.

When a supervision order is attached, the risk is still lower (7%) than for other options, such as residence/child arrangement orders and supervision orders, but higher than for adoption (1%).

“I think that is at odds with the general view that special guardianship orders are somewhat shaky options, [and] riskier than other placement options,” Harwin says.

While research is still ongoing, Harwin questions the view that SGOs are insecure: “I’m wondering whether it’s fuelled by the minority of extreme cases, for example, the deaths of children and serious case reviews. I think there’s also the question of what happened since the 26-week timescale was introduced. Are special guardianship placements being made under greater pressure?”

Harwin and her team are also looking in-depth at special guardianship cases in five local authorities to understand current practice and policy, and to compare the profile of cases that do and do not return to court. Although returning to court for new care proceedings may not capture all SGO disruption, it is a good measure of recurrence of actual or likely significant harm, she explains.

Harwin is clear on the message from national research so far, however: “Compared to return to court for other options, [SGOs] are at the low end of risk”.

Although the death or abuse of children in SGO placements is mercifully far from typical, concerns about the use, and misuse, of this relatively new legal order persist. Most experts appear to agree on one thing: government measures so far – whether to assess a special guardianship placement or support one – are unlikely to make these concerns disappear any time soon.