There are a multitude of reasons why a child may not live with their parents, and it is particularly important in these cases to provide that child with a sense of security, stability and belonging.
There are a number of options for achieving permanence for a child, and determining which option is best will very much depend on individual circumstances.
What is the difference between Special Guardianship Orders and Adoption Orders?
A Special Guardianship Order is an order made by the Family Court which appoints a person (or persons) to be the child’s Special Guardian.
These orders were introduced by the Adoption and Children Act 2002 as another option to create a sense of permanence for a child, to essentially bridge the gap between Residence Orders (now Child Arrangements Orders) and adoption.
If a Special Guardianship Order is granted by the court, the Special Guardian will attain parental responsibility for the child. The order enables the Special Guardian to exercise their parental responsibility for the child to the exclusion of the parents, allowing them to make day to day decisions regarding the child’s care and upbringing.
Special Guardians should however still consult the parents and those with parental responsibility on all important decisions involving the child e.g., where the child should go to school, or if the child requires medical treatment. Special Guardians cannot change the child’s surname or take the child abroad for longer than three months without the parents’ consent.
A person (or persons) can apply for a Special Guardianship Order if they are over the age of 18, and one of the following criteria applies:
- they are a foster carer, and the child has lived with them for a period of one year before the application
- the child has lived with them for three out of the last five years
- they are the child’s guardian
- the child is in care and the local authority consents to them making an application
- there is a Child Arrangements Order or Residence Order in place
- they are a relative of the child, and the child has lived with them for at least one year prior to the application
- they have permission from the court to make the application
In most circumstances, therefore, the child will already have lived with the prospective Special Guardian before the order is granted.
Special Guardianship orders do not sever the legal ties between a child and their birth parents
It is important to note that Special Guardianship Orders do not sever the legal ties between a child and their birth parents, and unless discharged by the court, the Order will come to a natural end when the child reaches 18.
If a child is able to remain with family members, this can reinforce the child’s own identity by allowing them to maintain those important family connections.
In most cases, the child will continue to have contact with their parents and wider family network, and careful consideration will need to be given to the level and frequency of contact to ensure that it is in the child’s best interests. These could be informal arrangements, or where appropriate, the court may make a Contact Order in addition to the Special Guardianship Order.
Adoption Orders: how do they differ?
Adoption Orders are different to Special Guardianship Orders in that they sever the legal ties between a child and their birth parents.
Adoption Orders transfer all parental responsibility to the adoptive parents, and once the order is made, it is permanent and can only be revoked in extremely rare and exceptional circumstances.
Non-agency adoption is the term given to adoption applications not involving an adoption agency. Examples include step parent adoption, applications by local authority foster carers, and applications by the child’s family members.
A person (or persons) can apply for an Adoption Order if they are over the age of 21 and habitually resident or domiciled in the UK.
In most cases, the child must have been living with the prospective adopter for a minimum duration before the application can be made.
In the case of an application by a relative, the application can be made if the child has lived with the relative for no less than three out of the five years prior to the application. However, it is still possible to make the application if this requirement is not met, provided leave is given by the court.
If an Adoption Order is made, the General Register Office will issue an adoption certificate which replaces the child’s birth certificate and will name the adoptive parents as the child’s parents. The child will take the adoptive parents’ surname and will have the same rights that a biological child would have.
There is no legal requirement for an adopted child to have contact with their birth family, however consideration should be given to contact arrangements if those are deemed to be in the child’s best interests.
Both Adoption and Special Guardianship Orders are established forms of creating permanency for a child, but they have very different legal consequences and outcomes.
There are lots of factors to consider when deciding which option may be better for your family. Our team of children's specialist lawyers can advise on all aspects of adoption proceedings. If you'd like to speak with a member of the team, you can contact us (020 3826 7528), alternatively you can complete our online enquiry form.