There has been some concern about the increase in the numbers of Special Guardianship Orders made, notably post Re B-S, and whether they are being made because Courts are sure that they represent the best outcome for a child in any particular case or whether they are sometimes ending up as rushed jobs because one can’t rule them out on a “nothing else will do” test. [As with almost anything in Family Justice, whether you think an increase or decrease in any particular outcome is a good or bad thing depends entirely on your perspective. ]
The DFE called for responses on this to consider whether there was a problem and what solutions might be. They have now published their report.
In summary, the review has found that:
- The majority of SGOs are made to carers who have an existing relationship with the child and who, with some appropriate support, intend to and will be able to care for the child until 18;
- There is a significant minority of cases where the protective factors we expect to see in each case – described above – are not in place. In particular, the following issues have been found:
- Rushed or poor quality assessments of prospective special guardians, for example, where family members come forward late in care proceedings; where there has been inadequate consideration early on of who might be assessed; when assessments have been carried out very quickly to meet court timelines; or when the quality of an initial assessment is challenged, requiring the reassessment of a special guardian.
- Potentially risky placements being made, for example, where the SGO is awarded with a supervision order (SO) because there remains some doubt about the special guardian’s ability to care for the child long-term. In the Research in Practice case file analysis, almost half of the 51 cases considered had a SO attached to the SGO. This is particularly concerning where the child is not already living with the guardian, or where there is no or little pre-existing relationship. 70% of respondents to the Call for Evidence said that the assessment process for determining whether a prospective special guardian is suitable could be improved.
- Inadequate support for special guardians, both before placements are finalised, and when needs emerge during the placement, for example, where the special guardian has not received the information or advice to make an informed choice about becoming a special guardian, or where they receive little or inadequate support post order to ensure they can support the child’s needs. 72% of respondents to the Call for Evidence said that advice and support should be provided to children, special guardians and birth parents before, during and after the award of special guardianship.
The review indicates that the challenges identified with SGOs occur at different points in the care process, but an assessment that lacks quality at the start is a major contributor to the issues highlighted above. It is vitally important for the local authority analysis to be robust, supported by strong and intelligent evaluation. SGOs are permanence orders, awarded on the expectation that the child will remain in that placement until he or she is an adult. For this reason, a sound prediction of the child’s long-term welfare in that placement should sit at the heart of the assessment, and form the basis for the final care plan.
As set out above, we need to ensure that children living under an SGO are safe, and that the placement gives them the best chance of good outcomes in their life. To be confident of this, children deserve to be assured that there is a robust assessment, that decision making is evidence-based, that the placement is assessed as being likely to last until 18, and that appropriate support will be available. The issues identified by the review suggest that these principles are not consistently followed.
Given this, we intend to:
- Strengthen the assessment process, to ensure that assessments are more robust and more consistent for all children, and that they are based on the fundamental principle that the person being assessed is capable of caring for the child for the whole of that child’s life to adulthood;
- Actively consider whether further changes are required to the legal framework that underpins decision making around special guardianship; and
- Consider what support should be available to children living under special guardianship arrangements
The assessment process
Immediately, the Government will amend regulations and statutory guidance to require that the local authority report to the court on potential special guardians includes:
- the capacity of the guardian to care for the child now
- and until the child is 18
- the prospective special guardian’s understanding of the child’s current needs and likely future needs, particularly in light of any abuse or neglect the child has previously suffered, and their ability to meet those needs
- the prospective special guardian’s understanding of any current or future risk posed by the child’s birth parents and their ability to manage this risk
- an assessment of the strength of the previous and current relationship between the child and the prospective guardian
They then say that they intend to publish further proposals in the New Year
The critical things are obviously what precisely is going to go into the Regulations that will be published “immediately”, and very critically whether the additional demands on the authors of the report will be counterbalanced by a statutory time period in which they should be carried out.
I’ve seen plans and press releases from Central Government before that don’t quite materialise into actual nuts and bolts of law. For example, Simon Hughes spoke all around the country and got reported in the national press relentlessly that the Government would be introducing proposals to give all under 10s a ‘voice’ in court proceedings about them. How this would differ from the voice that they currently have through the Children’s Guardian was never explained. Some people read it thinking that all children in all cases would attend a Court hearing always, some read it that some children would be allowed if they asked, some that children would all meet the Judge but not come into Court, some that children would be able to write a letter for the Judge (that everyone else would read? that nobody else would read? that some people would read?)
But no matter how often I searched and asked, nothing concrete as to what those proposals would actually be ever emerged.
And it now seems to have been kicked into the long grass, which is so handy for those in Government. If someone ever went into the long grass behind Parliament armed with a scythe (insert your own Aiden Turner picture here if you wish) they’d turn up all manner of exciting things.