The change to Legal Aid provisions governing Special Guardianship Orders

We often assist clients who want to apply for Special Guardianship Orders (SGOs). A SGO is a private law order appointing an individual to be a child’s Special Guardian. An SGO settles the living arrangements for the child to live with the Special Guardian and also gives the Special Guardian parental responsibility for the child, meaning an individual can care for the child in instances where they cannot be cared for by their parents. 

Parental responsibility

The SGO confers enhanced parental responsibility on the applicant (the person applying for the SGO). Other parties, such as the parents, will still have parental responsibility but the Special Guardian will have a higher level of parental responsibility and in most(but not all) circumstances will have the final say in decisions regarding the child and arrangements for them.

Although the Special Guardian has responsibility for making decisions regarding the day to day care and upbringing of the child, they cannot remove the child from the UK for longer than a period of three months, or change the child’s name without consent of all those with parental responsibility for the child or a Court Order. 

Who can apply for an SGO?

Individuals including grandparents, siblings, aunts and uncles and friends of the family may apply for an SGO. The Local Authority must be given notice of the intention to apply, and they will need to complete a Special Guardianship Assessment. The assessment should be completed before the application is made. 

The approach of the court when making SGOs

The child’s best interests will be the Court’s paramount consideration when deciding on whether to make an SGO, this means applying the Welfare Checklist (Children Act 1989) to include (non- exhaustive) the wishes and feelings of the child, the likely effect on them of any change in their circumstances and any harm they have suffered or are at risk of suffering. The Court has discretion in choosing to make an Order. 

The change in Legal Aid provisions

There have been recent changes to the eligibility criteria for Legal Aid. The change extends the availability of Legal Aid to both those who are prospective Special Guardians making applications for SGOs in private law proceedings (those seeking an SGO) and anyone who has parental responsibility for the child, responding to an application for an SGO. Eligibility for Legal Aid is dependent upon financial circumstances as well as the merits of the case.

This is a welcome change and will ensure that those applying for and those opposing an SGO can be supported and represented at every stage.