Special Guardianship Orders (“SGOs”) play a vital role in ensuring the welfare and stability of children who cannot live with their parents. These orders provide a legal framework that grants the special guardian enhanced parental responsibility while maintaining the child’s connection to their family. However, as life circumstances change, there may be a need a variation or discharge to these orders. This article provides an in-depth exploration of the legal processes involved in discharging or varying SGOs.
What Is a Special Guardianship Order (SGO)?
A Special Guardianship Order is a legal mechanism under the Children Act 1989 that provides an alternative to adoption or long-term foster care. It offers a stable, long-term solutions for children while allowing them to retain ties with their birth families. SGOs are commonly used when:
- Relatives, such as grandparents or aunts and uncles (not exhaustive), take on the role of caregivers.
- Long-term foster carers seek a more secure arrangement for the child.
- The court determines that adoption would not be in the child’s best interests.
Under an SGO, the special guardian has enhanced parental responsibility, which supersedes that of the birth parents in most decisions. However, SGOs do not completely remove the birth parents’ legal rights, unlike adoption.
Why Might an SGO Be Discharged or Varied?
While SGOs are generally intended to last until the child turns 18, life can be unpredictable. They provide a degree of permanency and stability for the children; that is their aim. Various factors might lead to the need for a review, including:
1. Changes in the Child’s Circumstances
As children grow, their needs, preferences, and relationships may evolve. A child might express a desire for a different living arrangement, particularly as they mature and gain a clearer understanding of their identity and relationships.
2. Concerns About the Special Guardian’s Ability to Care
The special guardian’s ability to provide care might be compromised due to:
- Health problems: Physical or mental health issues can impact their ability to care for the child effectively.
- Financial difficulties: Economic hardships may make it challenging for the guardian to meet the child’s needs.
- Allegations of neglect or abuse: In cases where the child’s welfare is at risk, the court may review the SGO.
3. Improved Circumstances of the Birth Parents
In some cases, the birth parents may make significant improvements in their lives, such as overcoming substance abuse, resolving legal issues, or stabilising their mental health. If the birth parents are now deemed capable of resuming parental responsibilities, they may apply to discharge or vary the SGO.
4. Reunification with the Parent(s)
If the child can be safely reunited with their parents, the court may consider discharging the SGO to facilitate this transition.
5. Legal or Procedural Issues
In rare cases, an SGO may be discharged or varied if procedural errors occurred during its creation, or if new evidence arises that impacts the original decision.
The Legal Framework for Discharging and Varying SGOs
Discharging or varying an SGO is governed by Section 14D of the Children Act 1989, which outlines the criteria and procedures for such applications.
Who Can Apply?
The following parties are eligible to apply to discharge or vary an SGO:
- The special guardian(s).
- The child’s parent(s) or anyone with parental responsibility.
- The child, if they are of sufficient age and understanding to make an application.
- A local authority involved in the child’s care.
Court’s Consideration of Applications
When reviewing an application to discharge or vary an SGO, the court prioritises the welfare of the child. This principle is enshrined in the Children Act 1989, which includes factors such as:
- The child’s wishes and feelings, considering their age and maturity.
- The child’s physical, emotional, and educational needs.
- The potential impact of any changes to their living arrangements.
- The capability of all parties (special guardians, birth parents, etc.) to meet the child’s needs.
Process for Discharging or Varying an SGO
1. Filing an Application
The process begins with filing an application to the family court. The application must clearly state the reasons for seeking to discharge or vary the SGO and provide supporting evidence.
2. Notice to Interested Parties
All relevant parties, including the special guardian, birth parents, and any involved local authorities, must be notified of the application. This ensures transparency and gives all parties an opportunity to present their views.
3. Court Hearing
The court will schedule a hearing to review the application. During the hearing, the judge will consider evidence from all parties, including social workers, legal representatives, and the child (if appropriate).
4. Decision
Based on the evidence, the court will decide whether to discharge, vary, or uphold the SGO. If the court deems it in the child’s best interests to make changes, the necessary modifications will be made.
Challenges and Considerations in Discharging or Varying SGOs
1. Balancing Interests
The court must balance the interests of the child, the special guardian, and the birth parents. This often involves complex emotional and legal considerations.
2. Proving Significant Change
Applicants must provide compelling evidence of a significant change in circumstances to justify discharging or varying the order. This can include medical reports, social worker assessments, or other necessary evidence specific to the purported change of circumstances.
3. Emotional Impact
Changes to an SGO can have a profound emotional impact on the child and all parties involved. Ensuring that the process is handled sensitively is crucial to minimise distress.
Tips for Special Guardians and Parents
For Special Guardians
- Maintain Records: Keep detailed records of the child’s progress, your caregiving efforts, and any challenges you face. These records can be useful in court if the order is challenged.
- Seek Support: Access support services for special guardians, including counselling, financial aid, and parenting resources.
- Be Open to Communication: Maintain open lines of communication with the birth parents, where appropriate, to facilitate a cooperative relationship. Communication with the Parents to evidence maintaining the connection with their parents and sometimes wider family is also helpful for the special guardians.
For Birth Parents
- Demonstrate Progress: If you’re seeking to discharge an SGO, provide evidence of personal improvement, such as completing rehabilitation programs or securing stable employment. Look back at the original SGO Order as that will often dictate what steps the Parents should take going forwards.
- Work with Social Services: Collaborate with social workers to create a plan for reunification, if applicable.
- Focus on the Child’s Best Interests: Ensure that any application you make prioritises the child’s welfare. The application is not about the Parent and the improvements they have made, that is just one hurdle to overcome, the ultimate decision will be whether a discharge or variation is in the child`s best interests. These applications have a very high bar and for good reason. The Court have taken significant steps making the SGO in the first place, so there should be little to no risk that varying or discharging the SGO would repeat the original proceedings.
FAQs About Discharging and Varying SGOs
1. Can an SGO Be Discharged Without a Court Order?
No, an SGO can only be discharged or varied through a court order. This ensures that the decision is made in the child’s best interests.
2. How Long Does the Process Take?
The timeline varies depending on the complexity of the case and the availability of court dates. On average, the process can take 6 – 9 months depending upon court time / availability.
3. Can a Child Apply to Discharge an SGO?
Yes, a child can apply if they are of sufficient age and understanding to make the application. The court will consider their wishes and feelings as part of the decision-making process. A legal Guardian would be appointed on behalf of the child.
4. What Happens If the Special Guardian Can No Longer Care for the Child?
If the special guardian is unable to fulfil their responsibilities, the court may discharge the SGO and make alternative arrangements, such as appointing a new guardian or returning the child to their Parents.
Conclusion
Special Guardianship Orders are designed to provide children with stability and security, but life circumstances can sometimes necessitate a review. Whether due to changes in the child’s needs, concerns about the special guardian’s capacity, or improvements in the birth parents’ situation, discharging or varying an SGO is a process that requires careful consideration and a strong focus on the child’s welfare.
By understanding the legal framework and following the appropriate procedures, all parties involved can navigate these changes with confidence and ensure the best possible outcome for the child. For those seeking legal advice or support, consulting a family law solicitor or social services can provide valuable guidance.
Whether you are making an application to discharge or vary a Special Guardianship Order or you are the Special Guardian opposing the application, we have vast experience in representing clients in these situations. Please contact either Jessica Leech or John Hirst from our Family Law Team for a free no obligation discussion.
