The Special Guardianship Regulations 2005

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"couple" has the same meaning as in section 144(4) of the Adoption and Children Act 2002[2];

"Local Health Board" means a Local Health Board established by the National Assembly for Wales under section 16BA of the National Health Service Act 1977[3];

"prospective special guardian" means a person - 

(a) who has given notice to a local authority under section 14A(7) of the Act of his intention to make an application for a special guardianship order in accordance with section 14A(3) of the Act; or

(b) in respect of whom a court has requested that a local authority conduct an investigation and prepare a report pursuant to section 14A(9) of the Act;

"relevant child" means a child in respect of whom - 

(a) a special guardianship order is in force;

(b) a person has given notice to a local authority under section 14A(7) of the Act of his intention to make an application for a special guardianship order in accordance with section 14A(3) of the Act; or

(c) a court is considering whether a special guardianship order should be made and has asked a local authority to conduct an investigation and prepare a report pursuant to section 14A(9) of the Act.

    (2) In any case where - 

(a) a person aged 18 or over is in full-time education or training; and

(b) immediately before he reached the age of 18, financial support was payable in relation to him under Chapter 2 of Part 2 of these Regulations,

then, for the purposes of the continued provision of financial support and any review of financial support, these Regulations shall have effect in relation to him as if he were still a child.

    (2) The services prescribed in paragraph (1)(b) to (e) may include giving assistance in cash.

    (3) For the purposes of paragraph (1)(e)(ii) respite care that consists of the provision of accommodation must be accommodation provided by or on behalf of a local authority under section 23 of the Act (accommodation of looked after children) or by a voluntary organisation under section 59 of the Act.

Arrangements for securing provision of services
     4.  - (1) The following are prescribed for the purposes of section 14F(9)(b) of the Act (persons who may provide special guardianship support services) - 

(a) a registered adoption society;

(b) a registered adoption support agency;

(c) a registered fostering agency;

(d) a Local Health Board or Primary Care Trust;

(e) a local education authority.

    (2) In paragraph (1) - 

(a) "registered adoption society" has the same meaning as in the Adoption and Children Act 2002;

(b) "adoption support agency" has the same meaning as in the Adoption and Children Act 2002 and "fostering agency" has the same meaning as in the Care Standards Act 2000[4] and "registered" in relation to any such agency means that a person is registered in respect of it under Part 2 of the Care Standards Act 2000.

Services for persons outside the area
     5.  - (1) Section 14F of the Act (special guardianship support services) applies to a local authority in respect of the following persons who are outside the authority's area - 

(a) a relevant child who is looked after by the local authority or was looked after by the local authority immediately before the making of a special guardianship order;

(b) a special guardian or prospective special guardian of such a child;

(c) a child of a special guardian or prospective special guardian mentioned in sub-paragraph (b).

    (2) But section 14F ceases to apply at the end of the period of three years from the date of the special guardianship order except in a case where the local authority are providing financial support under Chapter 2 and the decision to provide that support was made before the making of the order.

    (3) Nothing in this regulation prevents a local authority from providing special guardianship support services to persons outside their area where they consider it appropriate to do so.

Remuneration for former foster parents
     7.  - (1) Financial support under this Chapter may include an element of remuneration but only where the decision to include it is taken before the special guardianship order is made and the local authority consider it to be necessary in order to facilitate arrangements for a person to become a special guardian in a case where - 

(a) the special guardian or prospective special guardian has been a local authority foster parent in respect of the child; and

(b) an element of remuneration was included in the payments made by the local authority to that person in relation to his fostering the child.

    (2) But that element of remuneration ceases to be payable after the expiry of the period of two years from the making of the special guardianship order unless the local authority consider its continuation to be necessary having regard to the exceptional needs of the child or any other exceptional circumstances.

Payment of financial support
     8. Financial support under this Chapter may be paid - 

(a) periodically, if it is provided to meet a need which is likely to give rise to recurring expenditure; or

(b) in any other case by a single payment or, if the local authority and the special guardian or prospective special guardian agree, by instalments.

Cessation of financial support
     9. Financial support ceases to be payable to a special guardian or prospective special guardian if - 

(a) the child ceases to have a home with him;

(b) the child ceases full-time education or training and commences employment;

(c) the child qualifies for income support or jobseeker's allowance in his own right; or

(d) the child attains the age of 18 unless he continues in full-time education or training, when it may continue until the end of the course or training he is then undertaking.

Conditions
     10.  - (1) Where financial support is to be paid periodically it is not payable until the special guardian or prospective special guardian agrees to the following conditions - 

(a) that he will inform the local authority immediately if - 


(i) he changes his address;

(ii) the child dies;

(iii) any of the changes mentioned in regulation 9 (cessation of financial support) occurs; or

(iv) there is a change in his financial circumstances or the financial needs or resources of the child which may affect the amount of financial support payable to him,



and, where the information is given orally, to confirm it in writing within seven days;

(b) that he will complete and supply the local authority with an annual statement as to the following matters - 



(i) his financial circumstances;

(ii) the financial needs and resources of the child;

(iii) his address and whether the child still has a home with him.

    (2) The local authority may provide financial support subject to any other conditions they consider appropriate, including the timescale within which, and purposes for which, any payment of financial support should be utilised.

    (3) Subject to paragraph (4), where any condition imposed in accordance with this regulation is not complied with, the local authority may - 

(a) suspend or terminate payment of financial support; and

(b) seek to recover all or part of the financial support they have paid.

    (4) Where the condition not complied with is a failure to provide an annual statement in accordance with an agreement referred to in paragraph (1), the local authority shall not take any steps under paragraph (3) until - 

(a) they have sent to the person who entered into the agreement a written reminder of the need to provide an annual statement; and

(b) 28 days have expired since the date on which that reminder was sent.

    (3) The local authority must, if they are minded not to carry out an assessment, give the person notice of the proposed decision (including the reasons for it) and must allow him a reasonable opportunity to make representations in relation to that decision.

    (4) Where the request of a person for an assessment relates to a particular special guardianship support service, or it appears to the local authority that a person's needs for special guardianship support services may be adequately assessed by reference to a particular special guardianship support service, the local authority may carry out the assessment by reference to that service only.

Procedure for assessment
     12.  - (1) Where the local authority carry out an assessment of a person's needs for special guardianship support services they must have regard to such of the following considerations as are relevant to the assessment - 

(a) the developmental needs of the child;

(b) the parenting capacity of the special guardian or prospective special guardian, as the case may be;

(c) the family and environmental factors that have shaped the life of the child;

(d) what the life of the child might be like with the person falling within sub-paragraph (b);

(e) any previous assessments undertaken in relation to the child or a person falling within sub-paragraph (b);

(f) the needs of a person falling within sub-paragraph (b) and of that person's family;

(g) where it appears to the local authority that there is a pre-existing relationship between a person falling within sub-paragraph (b) and the parent of the child, the likely impact of the special guardianship order on the relationships between that person, that child and that parent.

    (2) The local authority must, where they consider it appropriate to do so - 

(a) interview the person whose needs for special guardianship support services are being assessed;

(b) where the person falling within sub-paragraph (a) is a child, interview - 


(i) any special guardian or prospective special guardian, as the case may be, of the child; or

(ii) any adult the local authority consider it appropriate to interview.

    (3) Where it appears to the local authority that the person may have a need for services from a Local Health Board, Primary Care Trust or local education authority, they must, as part of the assessment, consult that Local Health Board, Primary Care Trust or local education authority.

    (4) After undertaking an assessment, the local authority must prepare a written report of the assessment.

Assessment of need for financial support
     13.  - (1) This regulation applies where the local authority carry out an assessment of a person's need for financial support.

    (2) In determining the amount of financial support, the local authority must take account of any other grant, benefit, allowance or resource which is available to the person in respect of his needs as a result of becoming a special guardian of the child.

    (3) Subject to paragraphs (4) and (5) the local authority must also take account of the following considerations - 

(a) the person's financial resources, including any tax credit or benefit, which would be available to him if the child lived with him;

(b) the amount required by the person in respect of his reasonable outgoings and commitments (excluding outgoings in respect of the child);

(c) the financial needs and resources of the child.

    (4) The local authority must disregard the considerations in paragraph (3) where they are considering providing financial support in respect of legal costs, including court fees, in a case where a special guardianship order is applied for in respect of a child who is looked after by the local authority and the authority support the making of the order or an application is made to vary or discharge a special guardianship order in respect of such a child.

    (5) The local authority may disregard any of the considerations in paragraph (3) - 

(a) where they are considering providing financial support in respect of - 


(i) initial costs of accommodating a child who has been looked after by the local authority;

(ii) recurring costs in respect of travel for the purpose of visits between the child and a related person; or

(iii) any special care referred to in regulation 6(2)(b) in relation to a child who has been looked after by the local authority; or



(b) where they are considering including an element of remuneration under regulation 7.

    (6) In paragraph (5)(a)(ii) "related person" means a relative of the child or any other person with whom the child has a relationship which appears to the local authority to be beneficial to the welfare of the child having regard to the factors specified in section 1(3) of the Act.

Plan
     14.  - (1) This regulation applies in relation to the requirement in section 14F(6) of the Act for the local authority to prepare a plan in accordance with which special guardianship support services are to be provided.

    (2) The local authority must prepare a plan if - 

(a) they propose to provide special guardianship support services to a person on more than one occasion; and

(b) the services are not limited to the provision of advice or information.

    (3) Where it appears to the local authority that the person may have a need for services from a Local Health Board, Primary Care Trust or a local education authority, they must consult that Local Health Board, Primary Care Trust or local education authority before preparing the plan.

    (4) The local authority must nominate a person to monitor the provision of the services in accordance with the plan.

Notice of proposal as to special guardianship support services
     15.  - (1) Before making any decision under section 14F(5) of the Act as to a person's needs for special guardianship support services, the local authority must allow the person an opportunity to make representations in accordance with this regulation.

    (2) The local authority must first give the person notice of the proposed decision and the time allowed for making representations.

    (3) The notice must contain the following information - 

(a) a statement as to the person's needs for special guardianship support services;

(b) where the assessment relates to his need for financial support, the basis upon which financial support is determined;

(c) whether the local authority propose to provide him with special guardianship support services;

(d) the services (if any) that are proposed to be provided to him;

(e) if financial support is to be paid to him, the proposed amount that would be payable; and

(f) any proposed conditions under regulation 10(2).

    (4) In a case where the local authority propose to provide special guardianship support services and are required to prepare a plan under section 14F(6) of the Act, the notice must be accompanied by a draft of that plan.

    (5) The local authority shall not make a decision until - 

(a) the person has made representations to the local authority or notified the local authority that he is satisfied with the proposed decision and, where applicable, the draft plan; or

(b) the period of time for making representations has expired.

Notification of decision as to special guardianship support services
     16.  - (1) After making their decision under section 14F(5) of the Act as to whether to provide special guardianship support services to a person, the local authority must give the person notice of that decision, including the reasons for it.

    (2) Where the local authority are required to prepare a plan under section 14F(6) of the Act, the notice must include details of that plan and the person nominated under regulation 14(4).

    (3) If the local authority decide that financial support is to be provided, the notice given under paragraph (1) must include the following information - 

(a) the method of the determination of the amount of financial support;

(b) where financial support is to be paid in instalments or periodically - 


(i) the amount of financial support;

(ii) the frequency with which the payment will be made;

(iii) the period for which financial support is to be paid;

(iv) when payment will commence;



(c) where financial support is to be paid as a single payment, when the payment is to be made;

(d) where financial support is to be paid subject to any conditions imposed in accordance with regulation 10(2), those conditions, the date (if any) by which the conditions are to be met and the consequences of failing to meet the conditions;

(e) the arrangements and procedure for review, variation and termination of financial support;

(f) the responsibilities of - 



(i) the local authority under regulations 17 and 18 (reviews); and

(ii) the special guardian or prospective special guardian pursuant to any agreement mentioned in regulation 10.

    (7) The local authority must give the person notice of their decision (including the reasons for it) and, if applicable, details of the revised plan.

Review of financial support payable periodically
     18.  - (1) This regulation applies where the local authority provide financial support for a person payable periodically.

    (2) The local authority must review the financial support - 

(a) on receipt of the annual statement mentioned in regulation 10;

(b) if any relevant change of circumstances or any breach of a condition mentioned in regulation 10 comes to their notice; and

(c) at any stage in the implementation of the plan that they consider appropriate.

    (3) In paragraph (2) a relevant change of circumstances is any of the changes that the person has agreed to notify under regulation 10.

    (4) Regulations 12 and 13 apply in relation to a review under this regulation as they apply in relation to an assessment under Chapter 3 of this Part.

    (5) If the local authority propose, as a result of the review, to reduce or terminate financial support or revise the plan, before making that decision, the local authority must give the person an opportunity to make representations and for that purpose they must give the person notice of the proposed decision and the time allowed for making representations.

    (6) But paragraph (5) does not prevent the local authority from suspending payment of financial support pending that decision.

    (7) The notice must contain the information mentioned in regulation 15(3) and, if applicable, a draft of the revised plan.

    (8) The local authority must, having regard to the review, and after considering any representations received within the period specified in the notice - 

(a) decide whether to vary or terminate payment of the financial support or whether to seek to recover all or part of any financial support that has been paid; and

(b) where appropriate, revise the plan.

    (9) The local authority must give the person notice of their decision, including the reasons for it, and, if applicable, the revised plan.

(a) name, sex, date and place of birth and address including local authority area;

(b) a photograph and physical description;

(c) nationality (and immigration status where appropriate);

(d) racial origin and cultural and linguistic background;

(e) religious persuasion (including details of baptism, confirmation or equivalent ceremonies);

(f) details of any siblings including their dates of birth;

(g) the extent of the child's contact with his relatives and any other person the local authority consider relevant;

(h) whether the child is or has been looked after by a local authority or is or has been provided with accommodation by a voluntary organisation and details (including dates) of placements by the authority or organisation;

(i) whether the prospective special guardian is a local authority foster parent of the child;

(j) a description of the child's personality, his social development and his emotional and behavioural development and any related needs;

(k) details of the child's interests, likes and dislikes;

(l) a health history and a description of the state of the child's health which shall include any treatment the child is receiving;

(m) names, addresses and types of nurseries or schools attended with dates;

(n) the child's educational attainments;

(o) whether the child is subject to a statement of special educational needs under the Education Act 1996[5]; and

(p) details of any order made by a court with respect to the child under the Act including - 


(i) the name of the court;

(ii) the order made; and

(iii) the date on which the order was made.

     2. In respect of the child's family - 

(a) name, date and place of birth and address (and the date on which their last address was confirmed) including local authority area of each parent of the child and his siblings under the age of 18;

(b) a photograph, if available, and physical description of each parent;

(c) nationality (and immigration status where appropriate) of each parent;

(d) racial origin and cultural and linguistic background of each parent;

(e) whether the child's parents were married to each other at the time of the child's birth or have subsequently married and whether they are divorced or separated;

(f) where the child's parents have been previously married or formed a civil partnership, the date of the marriage or civil partnership;

(g) where the child's parents are not married, whether the father has parental responsibility and, if so, how it was acquired;

(h) if the identity or whereabouts of the father are not known, the information about him that has been ascertained and from whom, and the steps that have been taken to establish paternity;

(i) the past and present relationship of the child's parents;

(j) where available, the following information in respect of each parent - 


(i) health history, including details of any serious physical or mental illness, any hereditary disease or disorder or disability;

(ii) religious persuasion;

(iii) educational history;

(iv) employment history;

(v) personality and interests;



(k) in respect of the child's siblings under the age of 18 - 



(i) the person with whom the sibling is living;

(ii) whether the sibling is looked after by a local authority or provided with accommodation by a voluntary organisation; and

(iii) details of any court order made with respect to the sibling under the Act, including the name of the court, the order made and the date on which the order was made.

     3. In respect of the wishes and feelings of the child and others - 

(a) an assessment of the child's wishes and feelings (considered in light of his age and understanding) regarding - 


(i) special guardianship;

(ii) his religious and cultural upbringing; and

(iii) contact with his relatives and any other person the local authority consider relevant,



and the date on which the child's wishes and feelings were last ascertained.

(b) the wishes and feelings of each parent regarding - 



(i) special guardianship;

(ii) the child's religious and cultural upbringing; and

(iii) contact with the child,



and the date on which the wishes and feelings of each parent were last ascertained; and

(c) the wishes and feelings of any of the child's relatives, or any other person the local authority consider relevant regarding the child and the dates on which those wishes and feelings were last ascertained.

     4. In respect of the prospective special guardian or, where two or more persons are jointly prospective special guardians, each of them - 

(a) name, date and place of birth and address including local authority area;

(b) a photograph and physical description;

(c) nationality (and immigration status where appropriate);

(d) racial origin and cultural and linguistic background;

(e) if the prospective special guardian is - 


(i) married, the date and place of marriage;

(ii) has formed a civil partnership, the date and place of registration of the civil partnership; or

(iii) has a partner, details of that relationship;



(f) details of any previous marriage, civil partnership, or relationship;

(g) where the prospective special guardians wish to apply jointly, the nature of their relationship and an assessment of the stability of that relationship;

(h) if the prospective special guardian is a member of a couple and is applying alone for a special guardianship order, the reasons for this;

(i) whether the prospective special guardian is a relative of the child;

(j) prospective special guardian's relationship with the child;

(k) a health history of the prospective special guardian including details of any serious physical or mental illness, any hereditary disease or disorder or disability;

(l) a description of how the prospective special guardian relates to adults and children;

(m) previous experience of caring for children;

(n) parenting capacity, to include an assessment of the prospective special guardian's ability and suitability to bring up the child;

(o) where there have been any past assessments as a prospective adopter, foster parent or special guardian, relevant details as appropriate;

(p) details of income and expenditure;

(q) information about the prospective special guardian's home and the neighbourhood in which he lives;

(r) details of other members of the household and details of any children of the prospective special guardian even if not resident in the household;

(s) details of the parents and any siblings of the prospective special guardian, with their ages or ages at death;

(t) the following information - 



(i) religious persuasion;

(ii) educational history;

(iii) employment history; and

(iv) personality and interests;



(u) details of any previous family court proceedings in which the prospective special guardian has been involved (which have not been referred to elsewhere in this report);

(v) a report of each of the interviews with the three persons nominated by the prospective special guardian to provide personal references for him;

(w) whether the prospective special guardian is willing to follow any wishes of the child or his parents in respect of the child's religious and cultural upbringing;

(x) the views of other members of the prospective special guardian's household and wider family in relation to the proposed special guardianship order;

(y) an assessment of the child's current and future relationship with the family of the prospective special guardian;

(z) reasons for applying for a special guardianship order and extent of understanding of the nature and effect of special guardianship and whether the prospective special guardian has discussed special guardianship with the child;

(aa) any hopes and expectations the prospective special guardian has for the child's future; and

(bb) the prospective special guardian's wishes and feelings in relation to contact between the child and his relatives or any other person the local authority considers relevant.

     5. In respect of the local authority which completed the report - 

(a) name and address;

(b) details of any past involvement of the local authority with the prospective special guardian, including any past preparation for that person to be a local authority foster parent or adoptive parent or special guardian;

(c) where section 14A(7)(a) of the Act applies and the prospective special guardian lives in the area of another local authority, details of the local authority's enquiries of that other local authority about the prospective special guardian;

(d) a summary of any special guardianship support services provided by the authority for the prospective special guardian, the child or the child's parent and the period for which those services are to be provided; and

(e) where the local authority has decided not to provide special guardianship support services, the reasons why.

     6. A summary prepared by the medical professional who provided the information referred to in paragraphs 1(l) and 4(k).

     7. The implications of the making of a special guardianship order for - 

(a) the child;

(b) the child's parent;

(c) the prospective special guardian and his family; and

(d) any other person the local authority considers relevant.

     8. The relative merits of special guardianship and other orders which may be made under the Act or the Adoption and Children Act 2002 with an assessment of whether the child's long term interests would be best met by a special guardianship order.

     9. A recommendation as to whether or not the special guardianship order sought should be made in respect of the child and, if not, any alternative proposal in respect of the child.

     10. A recommendation as to what arrangements there should be for contact between the child and his relatives or any person the local authority consider relevant.

[2] 2002 c.38.back

[3] 1977 c.49. Section 16BA was inserted by section 6 of the National Health Service Reform and Health Care Professionals Act 2002 (c.17).back

[4] 2000 c.14. See section 4(4).back

[5] 1996 (c.56). See section 324 of the 1996 Act.back