Discharging or Varying a Special Guardianship Order | Kew Law

What is a Special Guardianship Order?

A Special Guardianship Order is an order made by the Family Court to provide parental responsibility for a child, to another adult. This will enable them to make important decisions in relation to the child’s day-to-day life and upbringing, such as medical decisions and matters relating to their education. This does not remove the parental responsibility of any parents in the child’s life, but essentially gives the special guardian a greater level of parental responsibility, meaning they are not required to seek the parents’ consent to making such decisions. A Special Guardianship Order is sometimes made as an alternative option to adoption.

Why Might a Change be Required?

A Special Guardianship Order would ordinarily come to an end when the child reaches adulthood, being the age of 18. However, there are various reasons why someone may wish to bring the order to an end sooner, or to vary the terms of the order. For example, the situation of the child may have changed so materially that the order is no longer appropriate or needed, such as the child now being able to return to the care of their birth parents. Another example of a variation being needed to the terms of the order is, for example, to remove one of two named guardians. In some sad instances, it may need to be brought to an end if the guardians can no longer care for the child and ensure their safety and welfare.

Making the Application

A Special Guardianship Order can only be ended or varied with the Court’s permission, so this will likely involve a Court application setting out the basis upon which the change is being sought. This application can be made by the special guardians, the birth parents, the local authority, or even the child themselves if they are considered old enough to understand.

It is recommended that the local authority is consulted before the application is made, as the Court may ask them to carry out further investigations in order to provide a report for use in the proceedings.

Once the reasons for the change have been considered, the applying party will need to complete a form and return this to the Family Court, and it is recommended that a detailed statement is also provided in support of the application, which clearly sets out the facts of the situation and the reason for the application. This will help the Court determine what issues need to be considered, in order to reach a resolution. For example, if there has been a change in the child’s circumstances, this will need to be evidenced clearly.

Once this form has been processed by the Court, they are likely to then list an attended hearing to explore the matter further. This may be followed by subsequent hearings depending on the complexity of the case, the issues to determine, and the evidence required by the Court. The Special Guardianship Order will remain in effect until a decision is made by the Court, and a further order is made.

What Will the Court Consider?

In contemplation of the application, the Court’s priority and main consideration will be the needs and wellbeing of the child in question, and any order considered will need to be made with their best interests in mind. The Court may consider the child’s wishes and feelings if they are old enough to convey these, and any additional needs the child may have. The Court will need to consider the likely effect of the requested change or end of the Special Guardianship Order, to determine whether this would meet the child’s ongoing needs.

The discharge or variation of a Special Guardianship Order can be a complex area to navigate, and it is therefore essential that specialist legal advice is sought from the outset to consider the merit of the application and to ensure the application stands the best chance of success to meet the child’s needs.

Frequently Asked Questions

Can a Special Guardianship Order be removed before a child turns 18?

Yes. A Special Guardianship Order can be discharged before a child reaches 18, but only with the permission of the Family Court. The Court will consider whether ending the order is in the child’s best interests.

Who can apply to discharge a Special Guardianship Order?

Applications can be made by a special guardian, a child’s parent, the local authority, or, in some circumstances, the child themselves, provided they are considered mature enough to understand the proceedings.

What is the difference between varying and discharging a Special Guardianship Order?

Varying an order means changing specific terms, such as removing or adding a guardian. Discharging an order means bringing it to an end completely.

What reasons might justify changing a Special Guardianship Order?

Common reasons include a significant change in the child’s circumstances, a successful rehabilitation with birth parents, changes in a guardian’s ability to care for the child, or concerns about the child’s welfare.

Do I need permission from the Court to change a Special Guardianship Order?

Yes. A Special Guardianship Order cannot be varied or discharged without the Court’s permission. An application must be submitted explaining the reasons for the proposed change.

Examples

Example A: Child returns to birth parents

A child was placed under a Special Guardianship Order with their grandparents due to concerns about their parents’ ability to provide safe care. Several years later, the parents have successfully addressed those concerns, secured stable housing, and maintained a positive relationship with the child. An application may be made to discharge the Special Guardianship Order, allowing the child to return to their parents’ care.

Example B: A guardian can no longer provide care

A special guardian develops a serious health condition that prevents them from meeting the child’s day-to-day needs. As a result, an application may be made to discharge the order and put alternative arrangements in place that better support the child’s welfare.

How can we help?

If you are considering applying for a Special Guardianship Order or would like to discuss your family matter in more detail, please contact Kew Law on 0800 987 8156.

For more information about Special Guardianship Orders, why not check out our other blog: Special Guardianship Orders