A Guide to Special Guardianship, Placement Orders and Adoption
What is a Special Guardian?
A Special Guardian has Parental Responsibility – in other words all rights of a parent in relation to a child. Parental Responsibility could be exercised without having to seek the consent of the natural parent.
The Special Guardianship lasts until the child is 18 (unless the Order is changed or cancelled) The Court would decide whether the grant a person Special Guardianship upon receiving an application.
Who can apply to be a Special Guardian?
The following can apply:
- A Guardian of the child
- Any person who has a Residence Order
- Certain people as listed under the Children Act 1989 (please ask us for further details)
- A Local Authority Foster parent with whom the child has lived for a period of at least 1 year before the application.
In addition, the Special Guardian must be 18 or over and must not be a parent of the child in question.
Why is it different from adoption?
Unlike adoption, children under a Special Guardianship Order can remain in touch with their birth family. Whereas, in adoption, children become part of their new family and no ties with their birth family remain.
Special Guardianship is useful for children who may not be suitable for adoption for instance due to their age, but who would still benefit from a stable placement with a long term carer.
What must I do before applying to be a Special Guardian?
You have to give notice to the Local Authority that you plan to make an Application and this must be given 3 months before you plan to apply. If the child is in care or looked after by the Local Authority, notice should be given to the Local Authority where the child lives. Otherwise, notice should be given to the Local Authority where you live.
The Local Authority then has to write a report for the Court to help the Court to decide whether or not to make the Order.
How can I apply to be a Special Guardian?
You have to apply to the court using forms C1 (or C2 if asking for permission to make the application) and form C13A. You can get the forms from the court or online at www.hmcourts-service.gov.uk.
Can I change or cancel a Special Guardianship Order?
The following can apply to cancel or change a Special Guardianship Order:
- A special Guardian
- Any Parental Guardian
- Anybody who has a Residence Order in respect of the child
- Any other person who before making the Special Guardianship Order had Parental Responsibility for the child
- The child themselves
- A Local Authority who has a Care Order
What support can the Local Authority provide?
By law, the Local Authority must provide the following to a Special Guardian:
- Counselling advice and information
- There are regulations to make sure the Local Authority provides financial support if relevant
- They may carry out an assessment of the person’s needs to support services at the request of certain persons
I want to change the child’s surname, is that going to be possible?
You would need to ask the court for permission when they make the Special Guardianship Order. A decision would be made in the best interests of the child.
My child is in the Special Guardianship of another person, can I apply to discharge (cancel) that Order?
As a parent you can apply to the court to discharge the Order. The Court must decide such matters taking into account the best interests of the child.
What is a placement Order?
This is Order where the Court authorises the Local Authority to place the child for adoption with prospective adopters. A Placement Order can only be made if the child is subject to a Care Order and in that case, either the Court is satisfied that the conditions for making the Care Order are met or that the child has no parent or guardian.
If there is a parent or Guardian then the Court must be satisfied that the parent or Guardian has consented to their child being placed for adoption.
If a Contact Order has previously been awarded to the birth family, does this continue once a child has been placed with me?
Under The Adoption and Children Act 2002 (which came into force on 30th December 2005), it is stated that an existing Contact Order would not continue in these circumstances. However, when making the Adoption Order (and depending on the circumstances), the Court may allow contact between the birth family and the child.
Can I change a child’s surname if they have been placed with me?
You can only alter the child’s surname if you have either got permission from the Court or if the birth parent(s) or guardian of the child gives consent.
Can I take a child that has been placed with me on holiday?
If you are going out of the UK, you can if you remove the child for less than 1 month without consent, although you should let the Local Authority/Adoption Agency know. Any longer than that and you will need the consent of the Court or each parent or Guardian.
How long is it before I can adopt a child that has been placed with me?
The child should be with you for 10 weeks before you can apply to adopt.
What does the Court consider in adoption proceedings?
Under the Children Act 1989 the overall factor the Court always has to take into account is the best interests of the child. Therefore any decision made has to take this into account. Other factors the court will consider are:
- The child’s wishes and feelings regarding the decision (considered in the light of their age and understanding)
- The child’s particular needs
- The likely effect on the child of having ceased to be a member of the original family
- The child’s age, sex, background and any of the child’s characteristics which the
- Court or Adoption Agency considers relevant
- Any harm which the child is suffered or is at risk of suffering;
The relationship which the child has with relatives and with any other person in relation to whom the court or agency considers the relationship to be relevant including:
The likelihood of any such relationship continuing and the value to the child of its doing so;
- The ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop and otherwise to meet the child’s needs
- The wishes and feelings of any of the child’s relatives, or of any such person regarding the child
- In addition, they must give consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.
Who can apply to adopt?
An application for adoption can be made as a couple or a person on their own.
A couple means two people who are living in an “enduring family relationship” they can be married, unmarried, of the same sex or Civil Partners. The following couples are eligible to apply to adopt providing at the time of making the application they are:
- 21 years of age or over or one of them is the mother or father of the child to be adopted and is at least 18 years of age and the other is at least 21.
- At least one of the couple lives in the United Kingdom, the Channel Islands or the Isle of Man; or both members of the couple have been habitually resident in a part of the UK, Channel Islands or Isle of Man for at least one year ending with the date the application is filed at Court.
- One person may apply to adopt, providing at the time of making the application:
- They are at least 21
- They are permanently resident in the UK, Channel Islands or the Isle of Man or has been habitually resident in a part of the UK, Channel Islands or Isle of Man for at least one year, ending with the date of the application to court.
- They are not married, do not have a Civil Partner
- They can also be the partner of the mother or father of the child to be adopted
Or married or has a Civil Partner but able to satisfy the court that:
- their wife/husband or Civil Partner cannot be found
- they have separated and are living apart and the separation is likely to be permanent; or
- their husband/wife Civil Partner is incapable of making an application for an adoption order by reason of ill health
What is an Adoption Agency?
This is an agency that selects people to adopt children. They can be the Local Authority or an approved voluntary organisation.
Will I be allowed contact with my child if they are adopted?
The Court, when making the Adoption Order, will take into account the specific facts of the case. If it is considered in the best interests of the child then birth parents and other family members can be allowed contact with the child. Alternatively, there may be written information provided through the adoption agency to the birth family.
However, in some cases it may be decided by both parties that it is best for the child to have a “clean break” to enable them to move on with their new adoptive family.
Do the Adoptive parents have Parental Responsibility?
Once an Adoption Order has been granted then the adoptive parents have parental responsibility and are legally responsible for the child.
My partner has a child who I want to adopt, how long do they have to live with me before I can apply?
They have to have been living with you for at least six months.
How long before I can adopt a foster child?
You can adopt a child after fostering them for a period of one year although the court can give permission for a shorter period.
Does the birth parent always need to give consent to the child being adopted?
The need to get the parent’s consent can be dispensed with, (i.e. they do not have to take into account whether the parent consents or not). This is in certain circumstances such as:
- The parent or guardian cannot be found or is incapable of giving consent;
- The welfare of the child requires that consent be dispensed with
If I consented to my child being adopted within 6 months of their birth am I bound by that decision?
No, the consent is ineffective if given within 6 weeks of the child’s birth.