The Adoption and Child Act 2002 relating to child law matters comes into force on the 30th December 2005. Generally the Act marks key changes regarding adoption and child law procedures. In this article family law specialist Anna Maddox at Harding Evans Solicitors concentrates on the creation of the Special Guardianship Order and its implications.

1. What is a Special Guardianship Order?
The Act is aimed at families in a situation where a child cannot live with his or her birth mother or father. The aim of a Special Guardianship Order is to appoint a Special Guardian for a child for whom adoption is not an appropriate solution. In essence, the overall effect of this provision is to alter the practical effect of parental responsibility.


2. What is the current legal position?
At present the only two options for a child not living with his or her birth parents are an adoption order or a residence order. One of the most important aspects of an adoption order is that it terminates the birth parents’ rights in respect of the child. A residence order specifies with whom a child is to live but provides no long term security because the birth parents still retain equal parental rights for the child. In addition if a residence order is made, the Local Authority may decide to withdraw its assistance if they have been involved.

The new law has arisen out of Government research which illustrated that children are more likely to thrive on the security that adoption provides as opposed to long term foster care.


3. What is parental responsibility and how is this affected by a Special Guardianship Order?
Parental responsibility is a general term used to describe all the rights and responsibilities associated with being a parent. A mother automatically has parental responsibility for a child whereas a father only has parental responsibility if he is married to the mother or:-
• He is named as the father on the birth certificate since 1st December 2003.
• He has a Court order giving him parental responsibility.
• He has entered into a parental responsibility agreement with the mother.

The effect of a Special Guardianship Order on parental responsibility is that it allows the Special Guardian to exercise their parental responsibility in priority to any other person with parental responsibility.


4. What are the main features of a Special Guardianship Order?
A Special Guardianship Order gives the Special Guardian parental responsibility for the child concerned. However it does not terminate the parental responsibility of any other persons with parental responsibility. It gives the Special Guardian priority to make decisions to the exclusion of any other person with parental responsibility.

In addition it allows the Special Guardian to take the child out of England and Wales for up to three months without having to obtain the consent of other persons with parental responsibility for the child concerned.

A Special Guardianship Order can also be amended, as opposed to an adoption order which cannot be amended once it has been made.


5. Who can apply for a Special Guardianship Order?
There are a number of circumstances which are acceptable including:
• Any guardian of a child or a person with whom the child has been living for at least 3 years.
• A person who already has a residence order for a child.
• Any person who has been the child’s local authority foster carer for at least one year prior to the application being made.
• Anyone who has the consent of those holding parental responsibility for the child.

It is thought that Local Authorities may, in appropriate circumstances, provide support and encouragement to existing foster parents to make an application for a Special Guardianship Order in order to provide a secure and permanent solution for a child.


6. What is the procedure for obtaining a Special Guardianship Order?
Any person wishing to apply must give three months notice to the Local Authority in which the child concerned is residing. Once notice has been given the Local Authority will nominate a person to prepare a report for the Court after assessing the application. Once the report has been provided to the Court dealing with all relevant factors and whether the Special Guardianship Order is suitable in the circumstances, the Court will decide whether to make the order.

It is not until the new law has come into force in December 2005 that the practical use and popularity of Special Guardianship Orders will be determined.