Special Guardianship Orders are a common result of care proceedings where extended family members are recommended to take long-term care of the child. However, they are becoming more frequently seen in cases where the special guardians are not related to the child.
Members of the 5SAH Family Team have recently been approached to advise existing foster carers who have been asked by their local authority to become special guardians. But what are the implications of being a special guardian rather than a foster carer, and how should foster carers be advised?
Legal differences
The key legal difference between special guardians and foster carers is that special guardians have enhanced parental responsibility of the child: they have parental responsibility in their own right and can exercise it to the exclusion of others, such as the parents (section 14C, Children Act 1989). Under a care order, the local authority has parental responsibility and this is simply delegated to the foster carers (section 33).
Support for foster carers
There are minimum core allowances for foster carers, based on research by Nina Oldfield that concluded caring for children in foster care is 50% more expensive than for a child in their natural family.
There are two reasons that foster care is more expensive. Firstly, there are the factors that are directly related to being a foster carer (e.g. travel to copious meetings with social services and other professionals). Secondly, there are indirect costs that can arise from caring for looked after children. For example, food costs if the child’s eating habits different to the rest of the family, clothing replaced more often due to medical issues or destructive behaviour, and additional spending on gifts due to lack of close relatives.
Support for special guardians
The local authority has a duty to support special guardians, both financially and otherwise, and this is governed by the Special Guardianship Regulations 2005. Any financial support is subject to assessment (reg. 13), and the guidance from the Department for Education states that the local authority must “have regard to” the relevant minimum core allowance for foster carers (para. 65).
In R(T) v London Borough of Merton, the High Court ruled that a local authority’s policy of providing special guardians with two thirds of the minimum core allowance for foster carers was unlawful. This was because it assumed that none of the additional costs of caring for a child in care were relevant to special guardians. However, although the direct costs of engaging with social services may not be incurred, the indirect costs are also relevant to special guardians.
Special guardians can therefore expect a comparable figure to that received by foster carers for a child of the same age. It is unlikely to be quite as much, but should be more than two thirds.
Foster carers becoming special guardians
There may be potential benefits for existing foster carers in becoming a special guardian (e.g. the professional development obligations of being a foster carer will no longer apply). However, special guardians cannot be remunerated for their role, unlike foster carers who receive a supplement in addition to the core allowance.
Foster carers who were previously foster carers can continue to receive this supplement, but only for a further two years unless there are exceptional circumstances (reg. 7). There is therefore little incentive for foster carers to become special guardians, at least from a financial point of view.
Mark accepts instructions in private family and care proceedings, as well as applications for non-molestation orders. He also has experience of financial remedy proceedings, including FDR and final hearings.
