Special Guardianship Orders and Adoption

Family members will often take on the role of primary carer for a child when the parents are unwilling or incapable of caring for their child, or on the death of a/both parents. This could be grandparents, older siblings, aunts and uncles. This role can be known as ‘kinship carers’ and they will need to obtain advice as they will not have parental responsibility for the child.

What does Parental Responsibility mean and why is it important?

Parental Responsibility enables a parent or carer to make decisions (along with others who hold parental responsibility) on behalf of a child in their care, for example what school they are to attend and what medical treatment they should have.

Whilst the mother of a child automatically has parental responsibility, and fathers obtain it through either being on the birth certificate or marriage, other carers must apply to the Court for a Parental Responsibility Order or a ‘Live With’ Order (which will give the holder parental responsibility for the length of the Live With Order).

Kinship carers will need to consider when applying to the Court which option suits their circumstances. There are two main options that will ensure the carer obtains parental responsibility for the child and specialist legal advice will help you in making the right decision.

Special Guardianship Order (SGO)

A Special Guardianship Order is often used by extended family members that are looking after children for the parents. This application requires the carer to give 3 months’ notice to the local authority (Social Services) of their intention to apply for such an Order. On receipt of this notice, the local authority must investigate and prepare a report for the Court. This report will deal with matters such as the suitability of the carer to be a Special Guardian.

The SGO can provide for contact provisions for the child and a parent (where applicable), and any specific issues, for example any changes of surname or granting permission for the child to be removed from the UK for holiday purposes.

The SGO gives the carer parental responsibility which they are entitled to exercise to the exclusion of any other person with parental responsibility. The parents’ parental responsibility will not be extinguished by making this Order, however, the Special Guardian’s decisions would be final, and this helps to avoid any issues in the future, should they not be able to reach an agreement with either parent.

Adoption

A child must be under the age of 18 when an adoption application is made and both parents should consent to the adoption, unless:

• they cannot be found;
• they are incapable of giving consent, for example due to a mental disability;
• the child would be at risk if they were not adopted; and/or
• the local authority has granted a placement order.

In order to adopt a child, the family member must have a permanent home in the UK and must have lived in the UK for at least one year before beginning the application process. There will be an adoption assessment and in order to make the adoption legal, you will need to apply for an Adoption Court Order.

The child must have lived with the family member for 10 weeks before an application is made, and if the child was not placed via an adoption agency/local authority, then the carer must notify the local authority of their intention to apply for an Adoption Order at least three months prior to the application being made. The Court requires written confirmation of the prior notice alongside the application, and the local authority will become a Respondent when the application is made by someone other than themselves.

Once the application form has been received, the Court will issue standard directions and a Cafcass Officer is likely to be appointed to act as the child’s Guardian and may be asked to prepare a report. The birth parents will receive notification of the application unless they have stated that they do not wish to be informed. An Adoption Order will be made if it is in the child’s best interests and the Adoption Order removes parental responsibility from the child’s birth parents and anyone else with parental responsibility. Once the Order has been granted, the child has the same rights as if they were the carer’s birth child, for example right of inheritance. The Adoption Certificate would replace the original birth certificate and show the child’s new name.

Further information can be found on the Resolution website here or the Cafcass website here.

How can Ellisons help?

We offer a free exploratory call, so that we can discuss your needs and look to match your specific circumstances with the right specialist family lawyer in our team.