Many of you will be aware that the Family Justice Council has released its long-awaited report making recommendations to achieve best practice in respect of Special Guardianship Orders.
If you have not seen it, the link is here:
Though the executive summary at pp 12-13 is a helpful document, it is necessary to read the whole paper to understand the rationale behind the conclusions, as well as to identify where potential pitfalls lie.
This paper has been foreshadowed since the case of Re P-S  EWCA Civ 1407, where the Court of Appeal and then President of the Family Division first identified that which we as practitioners had realised for a while; namely that SGOs were being increasingly used with little associated guidance as to how they should be case managed and properly assessed in proceedings. Re P-S made clear that the way we had been doing things needed to change and, much like twin tracked adoption cases, we needed to properly manage and assess SG applications rather than make SGOs in the somewhat ad hoc way we were. Since then, there has been little consistency across the board as to how to deal with prospective SGs or their assessment.
Introduced as part of the Adoption and Children Act 2002, inserting section 14A-G into the Children Act 1989, SGOs were created to cover a situation where (usually) family members sought to care for a child in the long term. They were created to fill the gap between private law orders in which parents and the family member, for example, would otherwise share parental responsibility, making long-term care difficult and, at the other end of the spectrum, orders placing a child for adoption. It seems to have followed the idea that it would be potentially unusual for an Aunt or Uncle to “adopt” their niece or nephew for example, but there needing to be some form of legal recognition that they are the child’s primary carer. There was a need to ensure that such kinship carers could make decisions about health, schooling and so on, as if they were the parent(s), without seeking the consent of the biological parent.
The situation in respect of SGOs has been made more complicated by two specific changes to the way with which the court deals with public law cases.
First, in 2013, the well-known cases of Re B and Re B-S were considered to have raised the bar in terms of adoption and, whether that is the correct interpretation or not, we have all seen how comparatively few cases of adoption happen now, as opposed to prior to these two cases. As a result, where twin tracking is a real possibility, increased importance has been placed on identifying and assessing kinship carers as an alternative.
Second, the implementation of the Public Law Outline and the Children and Families Act just a year later, compounded the difficulties for placements, given that parents were now faced with less time to turn the tide of the proceedings as well as the time that the court had to consider where the child should be placed for the rest of his or her minority.
The result of this has been that the possibility of the making of a Special Guardianship Order appears in almost every case we do. Using statistics from the Children’s Commission, I can see that in 2011, there were 4,288 children involved in SGOs that year, rising in 2016 to 7,489. As of 2018, there are in the region of 25,000 children between the ages of 0-16 subject to SGOs. In the same period, there has been a consequential downward trend in the numbers of adoptions, notably in the age group 1-4. In recent years, family courts have made more SGOs than placement orders.
Need for change
The report sought input from a number of respondents in all areas of the child protection and the family justice system, including CAFCASS, Judges, Local Authorities and notably, parents and Special Guardians themselves.
The current procedure is inconsistent across the board. When are kinship carers identified? At what point, if any, is there a cut off for identifying such carers? How long does the assessment process take? That latter point often depends on how busy the kinship team is, though we are routinely told 12-14 weeks. Whilst the assessors receive some guidance from Reg 21 of the Special Guardianship Regulations 2005, the quality of these assessment varies significantly in terms of how many assessment sessions take place, how much time the assessor and prospective carer spend together and so on.
For the carers themselves, what support and/or information do they get? Some local practice directions include automatic disclosure of relevant, redacted case papers to the prospective SGs, some do not. Legal advice is often not forthcoming, or if is, it is limited to an hour or so, at the discretion of the LA – that is usually it, whether or not the case takes a complicated turn.
When we look at a comparison of the statutory and voluntary support which foster carers receive, even if long term, versus the support that a prospective SG receives, we can see the dilemma for any kinship carer. How often have we been in a case where a kinship carer has baulked at the idea of being a SG because of that lack of support, only for someone to suggest that is somehow indicative of a lack of commitment to the child? No doubt, we have all sat in a conference room discussing the fact that the LA will, perhaps understandably, not supervise contact between a child and a parent in perpetuity because they are proposing a SGO. That conversation is often followed by one in which the prospective carer, often through the guardian or social worker, questions how they are supposed to, single-handedly, manage contact with a family member the court has deemed unsuitable to care for their child due to drink, drugs, mental health etc.
What protection do prospective Special Guardians have in the event that any full SG assessment of them is negative? They are invited to court and hope that the lawyer for one of the parties’ will run the case for them or, worse yet, they stand alone and put forward an impassioned but entirely incoherent position or application, because they are lay people and unsurprisingly don’t understand what is going on. This is hardly a fanciful scenario; we will all have seen it and done our best to manage it. Anecdotally, I heard of one case where the family member turned up to court to question why she had been negatively assessed as a Special Guardian when, for reasons no one could explain, the assessment failed to mention that she had been a registered foster carer for the same LA for many years!
From the point of view of the child, though it is less and less common now, many of us will have experienced those cases where the child had no pre-existing relationship with the proposed kinship carer, save perhaps some hastily arranged contact during the proceedings which may or may not include some overnight contact. How can it be right to determine that a child should live with a primary carer for the rest of their minority, without some full understanding of how they will manage in such a placement. Remember, adoptive placements, usually for younger children, involve substantial training and assessment, far in excess of SGOs, with long-term foster care for older children having similar requirements.
The rationale behind the paper realised all of the above and set out to address these issues.
The paper makes four clear recommendations. I summarise them here, but this is no substitute for reading them.
1. Assessment and Support plans
Any assessment must be “robust, comprehensive and compliant with regulations.” Notably, the report suggests that “Timetabling for the provision of such assessments must be realistic to provide for this.”
In order to meet these criteria, there must be:
Adequate attention taken to build a relationship and develop contact between the carer and the child. This may mean that the case needs to be taken out of the 26 week track, particularly, and this is important if the prospective carer is identified late. This need to build the relationship is not to be outweighed by the need to conclude the case within 26 weeks.
The most significant point to note may be this – where there is little or no pre-existing relationship with the carer, “it is very likely to be in the child’s best interests to be cared for on an interim basis by the prospective SG before any final consideration is given to the making of an ICO.”
If there is to be consideration of an SGO, consideration should be given at an early stage to whether the prospective SG should be a party and whether funding of legal representation should be given.
As to support plans, often we see these, whether in a specific format or whether they are a part of the LA final SWET. Regularly, however, even if they are there, they are reasonably vague, alluding to CIN support or referencing the Special Guardianship social worker as a point of contact should the need for help and support arise. Any plans must be more detailed, and focused than this; i.e. there is no point in having a generic, one size fits all approach.
2. Preparation and training
The report puts the ball firmly in the LA’s court. It is for them to consider how they might support and indeed train the prospective SG to care for the child. It is unclear how this should be done but, realistically, if parenting, nutrition etc. classes are provided for parents, why should they not be provided for a prospective SG who might never have had their own child, or did so 20 odd years ago.
3. A reduction in supervision order with SGOs
This isn’t new to us. It is already thought counter-intuitive that if a person has been deemed suitable to care for a child throughout its minority then a supervision order should not be necessary. For what it is worth, I’ve always thought precisely the opposite, though I understand the logic of saying that a public law order shouldn’t attach if it’s deemed in the best interests of a child to be placed somewhere. However, to my mind, if a supervision order is not a pejorative order and really is meant for the purpose of the LA to “befriend, advise and assist” a family, why should it not be precisely what a newly created family dynamic needs? If in short order it seems such supervision is not required, then it can fall away.
The report however, seeks to rely on what is set out in 1 and 2 above. In other words, if there has been proper training and preparation, as well as a meaningful support plan, what can a supervision order add?
4. Renewed emphasis on parental contact
Before an SGO can be made, the court must consider the purpose of contact, what the contact should look like and why (direct, indirect, supervised etc.), what professional input is required to support this and how is it going to be managed in the long term.
To address all of these matters, best-practice guidance is set out in Appendix E to the report. It needs reading but, in short, urges proactive case management both before and during proceedings, including the convening of family group conferences, early identification of prospective carers, assessment of the needs of the child and detailed consideration of the role of and support for prospective SGs.
The guidance is welcome and long overdue. It is not without its shortcomings, which I suspect are better identified by those who directly practice in the area. There will undoubtedly be more, but I have identified a few overlapping issues:
When and how do you place a child with the prospective Special Guardian? The guidance suggests this would be best done with an ICO. In reality, there would be no alternative; short-term care orders are expressly prohibited unless something changes. The court is unlikely to sanction a child arrangements order, and sharing of PR, if the child has been removed on an interim care order due to the risks the parents pose.
But what if the child remains at home during the proceedings? How do you arrive at a situation in which the child is removed from that parent, who is still contesting long term removal, and place with a family member? Such a decision would lead to justified cries of pre-judging the final outcome.
What if the prospective special guardian lives in a different part of the country? What if moving the child to them in the interim means a change of school, the only constant in their life? What about the impact on the parents’ contact? What if there is a sibling group? When and how is the decision taken to split up a sibling group if the children, for example, have different fathers and paternal families vying to care.
What do you do if there is more than one prospective special guardian seeking to care for the child? How do you assess both if part of the assessment is placing the child with them for a defined period?
Is this process now open to some parents to attempt to secure a tactical advantage by delaying in putting a potential SG carer forward? It is not uncommon, particularly with the 26-week process, for parents to be near, but not quite near enough, where they need to be to prove they have changed and can care to a good enough standard. Often, our best argument at final hearing is to buy more time. I’m not suggesting for one moment that lawyers would take this approach, but why wouldn’t parents keep a reasonable family member under their hats until late on in the process, knowing that producing them with a flourish late on in the proceedings might buy them another four months or so of proceedings, unthinkable until now, when it is actively said we can extend outside 26 weeks in scenarios such as this.
Who funds any legal representation of prospective SGs? Legal aid is unlikely to, with means and merits testing ruling out an awful lot of people. Are LAs expected to fund ongoing legal representation? If so, given the prevalence of possible SGOs in our cases, the LA costs for legal representation may double. Also, does this create a conflict of interest for the LA? How can a parent genuinely think they are being assessed fairly if, at the same time, the LA is paying for an extended family member, they might not like, to be represented.
I’m sorry to say that I don’t know the answers to any of the above. I don’t point them out in an effort at poking holes in the Guidance; it is, as I say, welcome and long overdue. I point them out because these are some of the very issues which we will be grappling with in the coming months and forewarned is forearmed.
18 June 2020
On behalf of the Albion Chambers children team, I’d like to thank all solicitors firms and Local Authorities for continuing to work with us during this extremely difficult time. We have worked hard to keep ourselves at the front of the line when it comes to remote technology and digital working and will continue to do everything we can to ensure that the high quality of representation you, your clients or social workers have come to expect from us, does not waver whether we are in court or on screen in our pyjamas from the waist down.
It goes without saying that we miss you all, we miss our cups of coffee and chats before cases and look forward to seeing you all again soon.