Magoosh GRE

Critically assess the implementation of Special Guardianship Orders

| March 28, 2015

1. Introduction
This study aims to investigate the current situation with regards to special guardianship, introduced in the early years of the 21st century following the Adoption and Children Act in 2002. It was designed to provide an option to allow a more secure and permanent option where formal adoption was not appropriate, for example where children needed to retain a close connection with their natural family (Miller 2006, p. 8). Special Guardianship Orders were implemented in two phases, with the first taking place in late 2003 and the second in 2005, with associated Regulations set in place (Miller and Bentovim 2006, p. 12). It is now several years since the Special Guardianship option has been available, and it seems a good idea to look at how useful it has been, and whether there are problems with its implementation. The orders were designed to widen choices for children in long-term foster care, children from ethnic minority backgrounds and older children (DES 2007, p. 55), and were welcomed at the time (BAAF 2005 [online]. There are a number of benefits of the orders, for example they can act as a midway option between the permanence of adoption and the lack of security of residence orders. They offer both increased benefits to the carer and continuing links with the birth family. People need not be married to apply for an order, and the guardian becomes responsible for the adopted child, with the parents retaining responsibility. This makes it much easier for the guardian to make everyday decisions about the child, although cannot take the child abroad or change his or her name. The child is able to keep in touch with the birth family, and is able to apply to have the Order reversed (though it is difficult to do this). Another benefit is that the local authority is supposed to provide much support to the Special Guardian to help them care for the child (Johnstone 2011 [online]), and it has been claimed “SGOs provide a welcome and positive alternative for those children in foster care who the Prime Minister’s Review identified as lacking a sense of security and permanency” (Johnstone 2011 [online]).

However, it soon became clear that there were problems in a number of areas, including financial ones (local authorities were reluctant to provide financial support equal to that offered for foster carers) (Parliament House of Commons Children, Schools and Families Committee 2010, p. 60), a lack of consistency across different local authorities (ARI 2010, p. 3), and problems relating to what happens after the child turns 18, when the Guardianship order terminates (Children’s Legal Centre 2008, p. 1). Another problem is the limited time frames which were allocated for such Orders to be put in place: The time frame currently suggests that prospective guardians need to give 3 months notice to the local authority that they intend to apply for an order, who then need to investigate the suitability of the applicant to take on the responsibility of such an order. The authority also has to make a report for the court (Johnstone 2011 [online]).

Although the Orders have only been in place for a few years, it seems that there are a number of problems with them, despite the hopes which they attracted originally. Because of this gap between aim and the actual situation, I felt there was a need to look in more detail at the problems which have arisen with the Orders, first understanding what the Orders were about and why they were introduced, then taking a critical perspective on what has happened since they started. My aim is to acknowledge the good things that they have brought about, but also to discuss everything that has gone wrong, and look at reasons why this has happened. I also aim to suggest how they could be improved, in order to make sure they can deliver the benefits they were intended to. My research aim can therefore be stated as follows:

“To critically assess the implementation of Special Guardianship Orders, uncovering what has been successful and what has failed, in order to suggest future improvements that could be made”

This involves a number of objectives, as follows:

• Investigating the history of the Orders
• Looking at the history of legislation, and current legislation
• Examining the benefits of the orders
• Looking at areas in which there have been problems
• Assessing what might be changed
The dissertation will first look at the methodologies which were used, explaining why the approach was taken, and explaining how the data was found and analysed. Then a literature review will set out the background to the study. This will create a context by exploring the historical background to adoption over the last 100 years or so, and will also look at how legislation has shaped adoption, and discuss the introduction of Special Guardianship as an option, explaining how it relates to other choices in adoption and fostering. The concept of permanence and its importance will be explained. The discussion section will take a critical look at whether the early promises of Special Guardianship orders have been delivered, and will point out problems which might not have been anticipated, for example with financial matters, and lack of clarity with the legislation. These problems are enough to cast doubt on the overall usefulness of the orders, and the discussion will also look at areas where they might be improved.

2 Methodology
The overall approach of the study will be post-positivist. Positivism is a research approach that assumes that there is an objective reality, and that the researcher can find out things about this reality. It is often associated with scientific method, or methods drawn from the natural sciences such as experiment and data gathering. It can be contrasted with approaches like post-positivism, and interpretivism. Post-positivism makes the same general assumptions as positivism, that there is an objective reality that can be explored and findings shared, but admits that human knowledge is fallible and imperfect. Both approaches also contrast with interpretivism, which was originally inspired by Weber, and which is concerned with understanding what people make of situations, and the meaning they read into things, rather than causal explanations. Interpretivism takes many different forms including phenomenology and symbolic interactionism (Blaxter et al 2006, p. 60). chose a post-positivist approach as I felt that I wanted to assume that reality is objective and that knowledge can be shared, but I also felt that such knowledge depends upon individual situation, and needs to take into account different perspectives. For example, in Special Guardianship, local authorities will have a different perspective on the matter than the families and adopted children. People involved in the legal system will also have different ideas. I wanted to take an approach which allows me to look at these different perspectives and combine them in one. I rejected interpretivism as although I wanted to look at the different meanings Special Guardianship Orders have for different people, I also wanted to use existing research studies which took a wider view, looking at larger data sets and making general conclusions.

The method I have chosen for the study is a literature review and discussion looking at secondary sources only. The distinction between primary and secondary research is a major one. Primary research is carried out for the purposes of a study, and does not exist before that research study. Primary data can be gathered in different ways for example by observation, experiment, surveys and interviews. Secondary data is already existing data, usually written down and published. It again can consist of different types for example databases, academic papers, text books, websites and government documents (Crowther and Lancaster 2008, p.74). Although primary data would have allowed me to collect information which relates exactly to my research aims, I rejected this method as in order to gain a full picture I would have to access a large number of people involved in adoption, as well as doing interviews with local authorities for example. I felt there were sufficient secondary sources to give a valid picture of the subject. My approach to the secondary data was to include both quantitative and qualitative studies, that is, studies which take a scientific approach to collate large amounts of data, and ones which interview fewer subjects to get an in-depth picture of what people feel (Crowther and Lancaster 2008, p. 75). I felt this combination would allow me to combine general principles with insights into what carers (for example) felt about Special Guardianship Orders.

I collected data from a number of sources, using my university library to find text books and relevant journals, but also making use of the university’s online search facility and gateways to electronic academic data. I used keywords to help my search including ‘Special Guardianship’ ‘Special Guardianship Orders’ ‘SGO’, ‘adoption’, ‘fostering’ and similar. I also combined keywords. I aimed to use data from the UK mainly, but also looked at relevant information from other countries. In addition, I used government sites to find details of White Papers and Acts relevant to the subject. I also used fostering and adoption websites from the UK.

Because I did not interview human subjects, there were fewer ethical issues, but I tried to present the data I found as accurately as possible, avoiding making statements that were not rooted in facts I had discovered. The research has clear limitations, particularly that this is a secondary study. A primary study would have meant I could have designed the research to fit my aims and objectives. It is hoped that this study will pave the way for such a primary study at a later date.

3. Literature Review
3.1 The Social Context and History of Adoption and Fostering
While adoption has been around since Roman times, it has “had a troubled history in every legal system that has sought to provide for it” (Bedingfield 2007 [online]). The modern version of our concept of adoption started in the USA in the 19th Century, but in the UK legislation and the development of a framework for adoption did not start until the 20th Century (Bedingfield 2007). A number of different things have shaped the various forms adoption, fostering and other forms of care have taken, and these include government recommendations, legal frameworks, and social and cultural matters.

During the early and middle years of the 20th century there was a more rigid society which expressed more judgemental attitudes about children born outside marriage (Caselli et al 2005, p. 328). Society did not approve of illegitimate children, and also abortion was less widely available, and this meant adoption was often used by women who found themselves in the difficult position of having to deal with an unplanned and unwanted child. Adoption was also considered socially unacceptable to some extent, and certainly in the early part of the 20th century, it was not a popular concept, and early attempts to make the process legal also included measures to hide the identity of all the parties concerned.. This had the unfortunate effect of compounding feelings of “secrecy and evasiveness, and possibly shame and stigma” amongst all concerned with the adoption (Bean 1984, p. 43).

The 1960’s brought big changes in social attitudes, due to increasing sense of sexual freedom, and growing interest in liberalism. Gradually, starting in the 60’s and continuing through the 70’s and 80’s, attitudes towards women changed, and women felt more free across their work, family and personal lives. Single mothers were no longer seen in as negative a light as they had been, contraception became more freely available and acceptable, and abortion was medicalised and became both more acceptable and easier to access. All these factors meant that there were fewer children available for adoption (Bean 1984, pp. 43-56). As the end of the twentieth century was reached, there have been other social changes meaning that attitudes to adoption have altered. For example, there was a demand that people in same sex partnerships, single people and unmarried couples should be able to adopt (Calhoun et al 2005, p. 143-144), as gay relationships, for example, were recognised as valid alternatives to the traditional nuclear family.

Today, while there are many couples who wish to adopt, there are fewer babies available for adoption. This is perhaps because of the increased availability of abortion and changing social views mentioned above. Perhaps understandably, potential adoptive parents want to take a baby rather than an older child or one with disabilities, and there continues to be a problem with a shortage of adoptive or foster parents for older children, as well as children with disabilities or emotional and behavioural problems (Davies 2000, p. 5-6)

It is expensive to keep a child in care financially (Hansen 1994, p. 142) but there can also be a negative impact on the emotional and educational development of children who are brought up in care either in local authority homes or short term foster care (Doyle 2007, pp. 1583-1610). It is therefore better for children if they can be found a long-term placement (Centre for Adoption Policy [online] 2011), and this is reflected in the changing legislation for placement options which have occurred throughout the 20th century.

3.2 Legislation and Permanence
Adoption and other options for taking care of children who, for whatever reason, cannot be looked after by their birth parents, has been closely regulated throughout the 20th and 21st centuries through legislation. This section looks at how this legislation has developed, and also at the role played by the idea of permanence and how it relates to children’s care.

3.2.1 The Development of Legislation about Adoption
The twentieth century, as has been discussed above, saw a large change in attitudes, and this led to a number of Acts of Parliament to regulate adoption. The Hopkinson Report in 1921, which recommended making the practice of adoption properly regulated within a legal framework, was an early influence. There had been an increase in the numbers of children being cared for by people other than their birth parents, perhaps as a result of the large number of deaths during the first World War. The Hopkinson Report was followed by the Tomlin Report (1925) which also suggested that the current legal structure was inadequate and was not appropriate for a society undergoing fast change (Katz et al 2000, pp. 310-312). Both the Hopkinson and Tomlin Reports were instrumental in the passing of the first Adoption Act in the UK in 1926, which created a “formal legal procedure for the adoption of children” (O’Halloran 2009, p. 21) for the first time. It enshrined three basic principles: parental rights should be to the adoptive parents, the child’s welfare should be assessed independently, and the birth parents had to give consent (O’Halloran 2009, pp. 21-22). This act was superseded by the Adoption of Children Act in 1949, which created a role for Local Authorities in supervising adoptions. The Adoption Act 1950 and the subsequent Adoption Act in 1958 consolidated previous Acts, and including changes following from recommendations made by Hurst about the welfare of the children involved (Hall 2003, pp. 188-191).

Because of dissatisfaction that was expressed about the 1958 Act, in 1968 the Home Secretary appointed an inquiry committee chaired by Houghton. This committee produced a Working Paper in 1970, designed to overview the law and provision for adoption, and looking particularly at the situation about access to birth parents. The 1970 Paper recommended no changes be made, but the Main Report in 1972 suggested that adopted children should have more access to information about their birth circumstances when they reach the age of 18 (Bean 1984, pp. 44). In 1975 the Children’s Act was passed, which allows children to have better access to birth records. The Act received a mixed welcome, with some extremely positive, but others concerned that the information might be misused (Bean 1984, p. 198).

The Children’s Act 1989 was brought in in 1991, and set out a number of changes to the legal structure which governed children’s welfare. It was influenced by several principles including making the welfare of the child a central concern, replacing the concept of parents’ rights with that of parents’ responsibilities, making the local authority more responsible in matters concerning children’s welfare, and giving children more rights. The Act aimed to make families more autonomous, get them more support from local councils, and also take extra measures to make sure children were not at risk of harm, or actually harmed. It also amalgamated private and public law and restructured court frameworks (Royal College of Psychiatrists [online] 2011).

Following this, the Adoption and Children Act in 2002 introduced a number of new measures to update the 1989 Act. These include making adoption more open, by giving the Court powers (in certain cases) to override the need for birth parent consent to adoption. It also allowed same-sex couples and unmarried couples to adopt as well as giving local authorities a new role (each authority had to develop its own adoption service), and developing new measures to make sure the child’s welfare was at the heart of the process (for example a welfare checklist). It also introduced a more consistent approach to the handling of information about adoption (HMCS 2006, pp. 1-31). Centrally, the concept of Special Guardianship Orders was introduced by the act, in an attempt to provide an order to offer more permanence to the looked-after child outside adoption.

3.2.2 Permanence
The concept of permanence is worth looking at in more detail, as it is so central to the notion of special guardianship. The term ‘permanence planning’ developed from work done by writers in the USA and it suggests a need for continuity and commitment to children (Morris 1983, p. 10-11), with a suggestion that there is a need for placements which are both stable and last for the longer term for children who, for whatever reason, are unable to live with their natural parents. Permanence planning means creating good home conditions for children and helping them feel secure in their environment, happy, and that they have a long-term home (Hall 2008, pp. 359-377). Hall suggests that within the UK it has been difficult to achieve this ideal because of issues balancing permanence on the one hand with “a disproportionate interference with his or her family life” on the other (Hall 2008, pp. 359-377). Hall also argues that long-term foster care is unable to provide the permanence needed, even though it has often been seen as a solution for ‘problem’ cases (including older children, children with problems of an emotional or behavioural nature, or children with abusive backgrounds). In long-term fostering the local authority keeps parental responsibility, which means that carers do not have the freedom to make decisions in the best interest of the child. Also, research has suggested that long-term foster carers were less keen to adopt children, and that the reasons for this are complex, including the complexities of individual children’s needs, the difficulty and need for support in addressing these needs, and also carers’ awareness of how adoption can make a negative impact on the carer’s financial circumstances (Schofield and Beek 2005, pp. 1283-1301). Before Special Guardianship Orders, the UK had a concept of ‘permanent fostering’, under which foster carers needed to be approved by a ‘permanence panel’ for taking on a child permanently. While some foster carers responded positively to this, and reported that the children in care also seemed to derive benefits from it, others felt it involved too many assessments and paperwork to be in child’s best interests, with others suggesting “scepticism about the notion of permanence and how valid a concept it was in a situation that was not legally secure” (Schofield and Beek 2002, pp. 14-27).
Given this background, Special Guardianship was seen as a way of providing greater permanence than offered by options open at the time (Hall 2008, pp. 359-377). SGOs were introduced to offer an alternative to adoption which provided permanence. Before they were introduced, it was assumed that adoption was the preferable model, however, in practice, long-term foster care persisted as an option for placement (Rowe et al 1989). Hall carried out a study of special guardianship orders issued over a 12 month period between 2005 and 2006 which shows that all parties involved in securing Special Guardianship Orders studied felt that they offered “a ‘permanent’, ‘stable’, ‘secure’ and ‘robust’ form of placement which protected the carer from the unsettling effects of future litigation” (Hall 2008, pp. 359-377).

Other empirical research also suggests that permanence in placements is needed. For example a study by (Schofield and Beek 2002, pp. 14-27) used a focus group approach to look at carers’ attitudes towards aspects of adoption and fostering. It was clear that the carers interviewed saw permanence and commitment as a necessary aspect of family life, respondents describing, for example, how they continued to support their adult foster children. This was despite the legal status of placements, with involvement ending at 16 or 18 years. All those interviewed placed high value on “the notion of family membership” and linked this with the notion of permanence and security, although they felt that the options available at the time were not enough to create this desired sense of permanence (Schofield and Beek 2002, pp. 14-27). Before SGOs, the legal lack of continuity had an effect on how much the carers felt “able to make decisions about the day-to-day upbringing of the children”. This lack of autonomy, Beek and Schofield point out, has a clear impact upon feelings of permanence. Cases where the child was disabled also suggested a need to extent permanence beyond the 18 year deadline. Overall, Beek and Schofield point out that the carers have a “sense of the long-term perspective” which was not, in 2002, reinforced by local authority provision or in law, and this meant “the current system gives mixed messages to carers” (Schofield and Beek 2002, pp. 14-27).

Other research also supports this message. Selwyn and Quinton (2004, pp. 6-15) looked at the results of a study funded by the Department of Health which examined the cases of 130 older children, only some of whom were adopted, in reference to permanence issues. They found that there were clear differences between the different options for placement. Foster children have less of a sense of ‘belonging’ to a family than adoptive parents do, and this insecurity seems to be associated with reduced feelings of emotional security for both child and carer. Their results suggest that before Special Guardianship was introduced the permanent fostering solution did not offer the type of permanency found with adoption. They found key differences between the experience of long-term foster carers and adopters. First, foster carers reported severe frustration with the ‘system’ which gave them responsibility but did not allow them the authority to make decisions. There was also confusion about who was supposed to do what for the child. Carers also reported that, they felt, social workers wanted to retain control over the child, even though the child would lose out as a result. The second issue concerned what happened when the child reached 16. While local authority plans seem to involve the child moving on, this did not always accord with what the foster parent or child wanted, nor with what was best for the child. In addition, a lack of permanence after 16 seemed to contribute to a child doing more poorly at school, as rather than thinking about exams they were worrying about how they would manage on their own. For the child, the experience of this lack of permanence can also impact upon how the child forms psychological relationships in later life (Selwyn and Quinton 2004, pp. 6-15).

Permanence, then, very important in providing proper provision for looked after children;. Research evidence also points out that children without permanence do less well and feel worse. SGOs were designed, among other things, to address this, by giving the child an increased sense of security: children, research has shown, prefer the feeling of security of adoption over fostering, for example (Collier 2005, pp. 5-7). Special Guardianship Orders seems to offer this extra permanence while retaining the child’s right with birth parents.

3.2.3 Special Guardianship Orders
Two studies, carried out by different governments, one in 1992, one in 2000, suggested that there was a need to look at the lack of middle ground between parental rights and child welfare. The 2000 White Paper put forward the concept of ‘Special Guardianship’, a new measure which was designed to give a child’s carer responsibility for caring for the child and the ability to make decisions about the child. This allowed a relationship between child and carer to develop, upon which a life-long relationship could be built. Also, decisions about everyday parts of the child’s life were taken out of the hands of the local authority. The Paper suggested a number of central aspects to SGOs, including a need for full support services to be provided (to include financial support). Following these studies and the White Paper, the Adoption and Children Act 2002 saw the full introduction of the Orders. The aim was to “give the carer clear responsibility for all aspects of caring for the child or young person, and for making the decisions to do with their upbringing” (Bedingfield 2007 [online]). Responsibility no longer rested with the local authority. It was also hoped that the orders would be useful in a variety of cases that were not covered by the existing legislation, including older children who want to remain connected to their birth parents, cases where children are cared for by members of the wider family, or cases where ethnic or religious differences mean adoption orders are less likely to be followed (Bedingfield 2007 [online]). The key aspect is that the Special Guardian has legal responsibility for the child until 18, while parental responsibility continues is shared with the parents (although the exercising of this is much limited). The local authority no longer has responsibility, and the Special Guardian takes on all day-to-day decisions (Fassit UK [online] 2011). The SGO is therefore to be distinguished from Residence Orders, Adoption Orders and Fostering (Proceduresonline.com [online] 2011), with differences in terms of role of the birth parent, duration of the order, whether the order can be revoked, and the nature of support services.

In more detail, the Special Guardianship Orders cover a number of areas: birth parents retain limited parental responsibility, opposed to adoption orders, where responsibility is given to adoptive parents, and foster care, where the local authority has the responsibility. The orders last until 18 (adoption orders last for life), Special Guardians cannot be parents, local authorities need to provide support services, similar to support given for adoption and fostering, and also make decisions about awarding SGOs. The Orders also allow for increased contact with the birth family, compared to adoption (Procedures Online 2011 [online]). Overall, The Special Guardianship Order was designed to reflect changing needs in society, for example by taking into account a new diversity in religions and cultures and to offer a way for asylum-seeking children to be cared for while retaining links with their birth family. (Pirrie and Fellowes 2006, pp. 585-7).

The idea of Special Guardianship Orders was welcomed, as it seemed to provide new options and solutions for existing problems with adoption and fostering, and was a good reaction to the new cultural climate. The first case under the new measure was that of a mother with 5 different children by different fathers, the youngest of which were to be adopted, and the older to remain with their carers (relatives of the mother). The case concerned whether a SGO was appropriate for the older children. The alternatives were a residence or care order, or no order at all. The latter would not give the children security, or guarantee that the mother would not try to regain custody later. A residency order would simply rule on where the child lived, and a care order would mean the children were legally in the care of the local authority. By contrast, a SGO allowed the carers to take on a more general parental role which would “cement the relationship between the child and Special Guardian” (Cullen, 2006 [online]).

Following on from the 2002 Act, the ‘Special Guardianship Regulations 2005’ provided a legal framework for Orders, covering the arrangements for securing provision of services, the provision of financial support and requirement for assessments and plans as well as reviews. The Regulations state who is enabled to provide support services for example. In terms of financial support, they suggest that this should be given where the local authority think it is needed in order for the SG to properly care for the child or considers that the child needs special care, or there is a need to contribute to legal costs or to cover costs of accommodating and looking after the child. This provision is general, and the interpretation by various local authorities, as will be discussed later, is varied. Financial payments, the Regulations state, should cease at 18, unless the child in still in education or training. The 2005 regulations also lay out the structure for conducting assessments of a child’s needs by the local council, taking into account a number of factors including “the developmental needs of the child”, the “family and environmental factors” and “what the life of the child might be like” (Special Guardianship Regulations 2006, pp. 1-16).

Special Guardianship Orders were popular, and since 2002 they have been widely used. However, there are a number of problems which will be discussed in more detail below. The attempts to improve legislation for adoption continue. By 2009-2010, the number of children placed for adoption was falling, with children waiting on average longer. There is a clear divide between adoption speeds for different ethnic groups, with black children taking over half as long again to be adopted. Older children also take longer to place (Department for Education 2011, pp. 1-44). The Children’s Minister suggested in November 2010 that Local Authorities need to be less rigid in their approach, for example by proactively seeking partnerships with voluntary adoption agencies who are more experienced with hard to place children. He also suggested that strict policies on adoption by same ethnic background families should be more flexible (Loughton 2010 [online]).

3.3 Problems
Special Guardianship Orders were popular, and since 2002 they have been widely used. Many welcomed them as offering a degree of permanence and stability for looked-after children which would not otherwise have been available, and “from the carers’ perspective, special guardianship was broadly meeting their expectations” (Wade et al 2009, pp. 1-5). However, some are concerned about the way the idea has been interpreted and the way they have been used in practice, for instance whether the practice lives up to the original aims. For example, courts have used them for very young children, which is at odds with the original idea that they were for older children for whom adoption was less possible. One overall issue from the start is that local authorities have varied greatly in their interpretation of the Orders (National Care Advisory Service [online] 2011), particularly in regards to two areas, first the age of eligibility, and second the level of services that the child is entitled too. The National Care Advisory Service suggest that the take up of Orders has been less than it might have been, largely because of this lack of clarity and cohesiveness for local authority strategy. While one of the aims of the Order is to dispense with the local authority’s holding responsibility for the child, the authority is still allocated a central role: for example there is a need to give notice to the local authority of “intention to apply for a special guardianship order” three months in advance. The local authority is also supposed to give support services for carers , with the nature of these support structures set out by the 2002 Act and including financial support and practical and emotional support (Family Rights Group 2009, p. 4). However, it is widely documented that authorities vary considerably in both their interpretation of the act and the support services they offer.

This discrepancy between local authorities is only one of a number of problems which have beset SGOs, and these problems will be discussed in more detail in the next section. However, we can note here that problems fall into clear categories. One of the main problems is the differences between local authorities regarding interpretation of the Act, as mentioned above, but there are also problems associated with the notion of permanence and the extent to which the relationship created by a Special Guardianship Order is properly permanent. Financial problems are also common. While the Special Guardianship Order seems to have many benefits, it looks as if it fails to completely fulfil the expectations which originally surrounded it.

4. Discussion

The previous section has looked at the nature of Special Guardianship Orders in some detail. It has been shown that they seemed to offer a solution to problems of looked-after children, in particular offering a way to allow permanence in a relationship without the invasiveness of adoption. They also seemed to offer a modern answer to new problems which had arisen because of changes in society, including the needs of asylum-seeking children who wanted to keep close links with their birth families, and those of older children for whom adoption has not been available.. However, the previous section also hinted at the problems which have beset Special Guardianship Orders in practice, in particular issues with differences between local authority’s interpretation of their duties, problems with financial matters, and the extent to which the Orders fail to achieve the aim of permanence. While Special Guardianship Orders were introduced with the best of intentions, and while the notion was initially well-received among professionals (Wade et al 2009, pp. 1-5) there has been a mixed reaction to them.

The following section will look at these problems in greater detail, asking whether they are so severe as to mean SGOs are useless. This section will also consider whether there is a need for further research into the Orders, given that they have only been in existence since 2005. As Wade et al (2009, pp. 1-5) report, there was initially little research looking at how the intentions of the 2002 act had been translated into practice. Wade et al aimed to rectify this by looking at the implementation of Special Guardianship Orders under eight local authorities, through a case study analysis combined with a study of policy and applicants to SGO (Wade et al 2009, pp. 1-5). There have been one or two other studies, but more research seems necessary. In addition, this section will briefly discuss, on the basis of the successes and failures of the Special Guardianship Orders, what new solutions to addressing the needs of looked-after children might be appropriate.

4.1 Problems

This section will discuss in turn the different problems which have arisen regarding Special Guardianship Orders
4.1.1 Problems Generated by Local Authorities
Existing research seems to show the lack of clarity and consistency from local authorities as one of the major problems in the implementation of Orders. There is an obvious need for local authority support to those involved in the orders: for example many respondents interviewed in a study by Hall felt that on-going support was very important when they were deciding whether to select Special Guardianship. While in theory this support would be provided equally by all local authorities, with services including telephone counselling, training, social events and respite care (Hall 2008, pp. 359-377), there is in practice a gap between individual local authorities in terms of what is provided. Together with this inconsistency, a lack of clarity has been reported, with each authority making individual decisions and no overall guidelines to help them interpret the Act. Consequently the “degree to which … local authorities had risen to the challenges of implementing special guardianship was highly variable” (Wade et al 2009, pp. 1-5). There are many different ways in which local authority provision differs. For example, authorities differ regarding how prepared they are to invest time in the issue, whether the authority leaders incorporate views about Special Guardianship Orders into their overall strategy, and the way that the teams responsible are organised. While there seems to be a strong argument for specialisation and dedicated teams, very few local authorities work this way. There is also concern over the availability of support services and the variability of “quality assurance mechanisms” (Wade et al 2009, pp. 1-5). Financial matters seem to play a part in shaping local authority behaviour, with Hamilton (2008 [online]) suggesting that some authorities might be reluctant to create the necessary reports for Special Guardianship Orders due to the resources these require. As Special Guardianship Orders have been in existence for only a short time in the UK, it is hard to form a complete picture, however the message about the role of local authority support is also put across by Ward’s (2004, pp. 16-26) study of similar Orders in New Zealand, which have been in place since the late 60’s. Hall reports that there were problems with the “level and quality of social work support” from authorities, with inconsistent advice, or less advice given than needed, with broken promises and with lack of continuity in social workers. In addition, carers felt excluded from decision processes (Ward 2004, pp. 16-26). Overall, while there is a real need for more research in the UK, the picture painted is one in which a ‘postcode lottery’ exists, and in which carers might find themselves baffled by existing systems. While one of the aims of Special Guardianship Orders is to dispense with the ‘red-tape’ created by having the local authority acting in parental responsibility, it is obvious that there is still a need for the authorities to provide a supportive relationship. However, without clear national guidelines, this seems to be difficult to realise.

4.1.2 Problems of Permanence
One of the key aims of the Special Guardianship Orders was to address a need for permanence for looked-after children for whom adoption is not an option. However, this aim seems to have been hard to achieve in practice, for instance the Orders stop at age 18, and there is no protocol concerning what happens to a child after this birthday. The 18 year old is left without practical support, next of kin and any emotional backup for the difficult years transitioning to full adult life. While the Orders are supposed to offer a more permanent solution than other care orders, the fact they stop at 18 undermines this ideal. Schofield and Beek (2002, pp. 14-27) point out that emotional connections and feelings of responsibility persist for much longer than this, throughout the life of the cared-for child, with young people needing support “well into adulthood” with “family continuity .. an obvious part of their commitment”. Many carers they studied reported that they continued to provide support well beyond the remits of 16 or 18 years imposed by local authorities. Although at the time of their study, SGOs had not been tested out, their insights have value for the Orders also, as they reported that many carers felt that the local authority seemed to discourage on-going support once the landmark birthday had been passed, and they also suggest that reports and assessments of the child once they reached the age needed to be more realistic. Against this background, it would seem that Special Guardianship Orders may not offer the hoped-for permanence.

In addition, Hall’s study of SGOs placed between 2005 and 2006 reported a number of further issues surrounding permanency. One problem concerns a lack of clarity over the term’s definition. While those interviewed, who included carers and those administering the Orders, often used the term ‘permanence’, the notion “clearly lacked any meaning in an abstract, objective sense for interviewees, instead they used it in shifting, relative terms” (Hall 2008, pp. 359-377). Without a precise definition it is difficult to see how the notion can be translated into clear policies and guidelines. It was also clear, Hall reports, that Orders were seen as a “second best” to adoption in terms of permanence, with adoption allowing permanency planning to be carried out more effectively. There was a question in the mind of all interested parties regarding whether Special Guardianship Orders can offer the security and permanence for the child which is desirable. Hall also suggests that the introduction of these Orders was an opportunity for the UK government to introduce changes to the “existing permanence hierarchy”, with adoption at the top and short-term foster care at the bottom, but this opportunity has been missed, the order serving only to reinforce this hierarchy rather than place SGOs as a real alternative to adoption. In terms of the perspective of European Human Rights Law, adoption is more intrusive for the child, and hence should be an option of last resort, but in practice this has not been embraced in the UK, with SGOs treated only as a better option in terms of permanency to residence orders, and seldom as a preferred alternative to adoption. Hall also points out that lack of formal training has contributed to the maintenance of the status quo. (Hall 2008, pp. 359-377).

In short, therefore, it seems clear, based on the existing research, that the Orders have not provided the solution to the permanency issue that might be hoped for. Not only do they fail to provide for the child after adulthood is reached, the terms lack of clarity hinders attempts to translate it usefully into practice. In addition, while it was hoped that the Orders might provide a real alternative to the intrusiveness of adoption, in practice it seems that they have simply taken second place in a hierarchy of options.

4.1.3 Financial Issues
One of the main problems emerging from research and feedback on Special Guardianship Orders is the financial aspect Simply, the local authorities are reluctant to provide financial support to match that received by foster carers, even though many of the children to whom the Orders apply have had an abusive background, with impacts of this abuse not appearing until their teens, and clearly need on-going financial support. Of the existing research into problems with SGOs, the bulk seems to concern financial matters. Gillen (2008 [online]), for example, reports that many former foster carers who made the transition to Special Guardian status have been left “struggling to cope” as their financial support has been severely reduced. Quoting Malcolm Phillips, the manager of an advice service for fosterers, she reports that carers feel they are “conned, pressurised and duped into going down the guardianship route”. Councils are only legally required to finance Special Guardians who had been foster carers for 2 years after the granting of the order, and there are widespread differences between local authorities in terms of how much financial support is given to Guardians. There is also a clear difference between the support given to foster carers and Guardians, for example Islington council pays foster carers 337 pounds per week with SG receiving 134.80 per child per week (Gillen 2008 [online]). This can be compared to Lambeth who pay foster carers 354.96 and SG 179.00 in the absence of significant need i.e. disability.
Another problem, noted by Wade et al (2009, pp. 1-5) is the degree of variation between local authorities in respect of different financial support for differing types of Special Guardianship Orders. For example, former foster carers tended to have better financial packages than did other Guardians, with protection of payment for 2 years and sometimes longer. The relationship with fostering rates was also unclear, although most Guardians received some form of payment (Wade et al 2009, pp. 1-5). Such was the depth of feeling about financial issues that a family law firm in Huddersfield were considering taking the local council to court in order to oppose its decision to pay Special Guardians 2/3 less than foster carers (Brody 2006 [online]). There have been other legal challenges to local authorities. Day et al (2008, pp 766-768) discuss ‘B v Lewisham Borough Council’, in which a challenge was brought to the borough’s financial package of support for Special Guardians which had been based on adoption allowances rather than the higher fostering rates. In this case, it was ruled that “Lewisham’s scheme was unlawful as there was no close association between fostering and special guardianship allowances” with a suggestion that allowances for adoption were also too low. This was the first legal ruling on the financial arrangements for Special Guardians, and as such was significant, opening the way for other local authorities financial support rates to be challenged. Lewisham argued that it is more expensive to bring up children in foster care, but this argument was rejected. In wider terms, the judgement suggests that “any local authority schemes that do not use the fostering allowances as the starting point should be closely looked at as they are likely to be unlawful” (Day et al 2008, pp. 766-768). In addition, there are practical difficulties for local authorities in collating information regarding Orders, as they “contain sensitive financial and other information about the prospective Special Guardian(s)” (Hamilton 2008 [online]). Ward’s study of carers in New Zealand, where Special Guardianship Orders have been an option since the late 60’s, also report similar financial issues (Ward 2004, pp 16-26).

4.1.4 Other Problems
While the problems outlined above seem the most central ones, there are other issues which have emerged since Special Guardianship Orders appeared. The time frame is one problem. Currently, the local authority can take 5 to 12 weeks for an assessment (Wade et al 2009, pp. 1-5), but the case of Tyra Henry and others (Batty 2003) suggests that this is far too short a time to assess children properly, especially given that many are from severely dysfunctional families. Wade et al (2009, pp. 1-5) also report that many of the professionals they interviewed felt the maximum 12 week timeframe was insufficient given the complexity of what needed to be covered, and the need for all those involved o have time to think about the implications (Wade et al 2009, pp. 1-5).

There is also an issue with rights. While the intention for Special Guardianship Orders was to address a need for permanence and security where adoption is not an option, giving the Guardian wider powers and making them subject to fewer restrictions, this has led to unforeseen problems. For example, by not giving all fathers, whether married to the mother or not, parental responsibility, the Order upholds discrimination against unmarried fathers, treating him less well than both married fathers and unmarried mothers. Many fathers are not even aware that they do not possess parental responsibility (Pirrie and Fellowes 2006, pp. 585-7).

Feelings of autonomy for the Guardian are also a problem. Ward, looking at the case of New Zealand, found on the positive side that “guardianship is the most prominent means of achieving a permanent placement for a looked after child” with adoption taking a back seat. Most guardians in his study reported that they were deeply committed to the child for the long-term. However, there were issues with parental autonomy, and some Orders lacked legal protection. There was also a widespread fear that the birth family would claim the child back, as well as issues surrounding the extent of contact with the birth family (Ward 2004, pp. 16-26). Other, and rather different, problems surrounding autonomy are a function of the change to parental responsibility. Until 2005, responsibility was retained by whoever had it, unless a court made an order to the contrary, through an Adoption Order. However, the SGO changed this, with parental responsibility being conferred on the Guardian by the order, and, in most cases, overriding the parental rights of others. This, it has been claimed “gives the parental responsibility of the Special Guardian a controlling quality analogous to … the parental responsibility exercised by the designated local authority under a care order”. While this sounds like it might be a positive move, in practice this simply complicates legal debates, as the enhanced parental status is not enough in itself to mitigate against disputes, with the result that continuing local authority involvement may be needed (Hamilton 2008 [online])

Emotional problems for the family were also an issue. Wade et al (2009) point out that the impact upon the family can be severe. They note that most new Special guardians had to make quite extensive revisions to their life plans and their living circumstances: “some had given up employment and most had sacrificed important aspects of their social life”. The management of the relationships with birth families was also difficult for some guardians. Wade et al also point out the need for on-going support “to help special guardians manage often complex and conflicted family relationships” as well as issues arising because of the abuse of children before they leave their home environment, also suggest that there is need to train the guardians in dealing with these difficult issues needs to be addressed.

In addition, Special Guardianship Orders cannot be seen as a ‘one size fits all’ solution, although some local authorities seem, in practice, to use it this way. There is rather a need to take all details of a case’s circumstance into account before deciding which measure is most appropriate, regarding, for example, the security and permanence different solutions offer (Bond 2007, pp. 321-325). Finally, it has been suggested that one of the original aims of the Orders, to help provide permanent care for older children in particular, has not been carried out, as in practice the Orders have been used for children of all ages (Hamilton 2008 [online])

Overall there are clear issues with the way Special Guardianship Orders have been implemented. However, the issue of permanence is inherent to the conception of the Order, as they were intended from the start to last only until a child reaches adulthood. This contributes to feelings of lack of permanence for both carer and child. The other two main issues are down to the way the Orders have been interpreted, with high levels of variation between local authorities, and lack of adequate financial support. There are also additional issues which suggest that there is an urgent need to revise details of the Orders as well as produce better guidelines for implementation.
4.2 Lack of Research

One thing that has clearly emerged from the above study is the relative lack of investigation of SGOs. As they only came into force in 2005 to 2006, there has been relatively little time to carry out research studies. The ones which have been carried out highlight both positive and negatives. Further research is clearly needed, to see if the findings of existing studies are replicated on the larger scale. Quantitative research might look at the long-term benefits and drawbacks of the orders in terms of educational and career outcomes for children, and qualitative studies might look in more detail at carers’ and children’s responses to the Orders. Given the extent to which current research highlights lack of local authority consistency as a problem, future research might look at this, perhaps analysing all local authorities within the UK in terms of the details of their policies about Special Guardianship Orders, and how they are implemented. Research is also needed to address the issue of timescales, looking, for example, at what might be a more appropriate time scale than the existing 5-12 weeks.
4.3 New Solutions

To propose new solutions for the problems outlined above would ideally involve looking at more research on Special Guardianship Orders, in order to fully understand the benefits and drawbacks both of the way they were envisaged and how they have been implemented. However, based upon existing research, a number of suggestions can be made. The issue of permanence is central, and seems to hinge upon the age limit of 18 for the Orders. This might suggest that a revision to the legislation is necessary, allowing Orders to continue beyond 18 either in all or in special cases, which would mean that both carers and children would feel more secure in the relationship they develop. There also seems to be a need to look at the legalities of parental responsibility, to clarify in detail who holds it. One of the main areas in which improvements can be made is clearly in the implementation of Special Guardianship Orders. There is an over-riding need for a national policy, rather than the current situation in which local authorities interpret policy as they wish. This leads to wide discrepancies between geographical areas. Such a national policy would need to cover a wide range of areas including support packages, training for carers, how cases are analysed and, perhaps most importantly, financial support. Carers have a right to expect clear guidelines on what support they are entitled too. Many local authorities seem to assume that financial support should be based on adoptive rather than foster-care rates, but legal challenges suggest this is incorrect. Given the higher emotional needs and higher likelihood of abusive backgrounds in children entering Orders, there is an argument that higher financial rates should be paid.
5. Conclusion

The above has looked in detail at the relatively new option, Special Guardianship Orders. The aim has been to analyse how successful they have been since their instantiation in 2005, and particularly to highlight problems with the Orders. They certainly seem to have been introduced with the best intentions, in order to provide a more permanent and secure solution for children and carers which would offer some degree of permanence while maintaining the child’s support with the birth family and allowing the carer to access support from the local authority. Also, Special Guardianship Orders were designed to fit the changed needs of modern society, particularly the needs of older, harder-to-adopt children, children from non-mainstream religious and cultural backgrounds, and asylum seeking children who needed to retain strong links with the birth family. However, response to the Orders has been mixed. While they have been welcomed by many for offering the new solutions above, there has also been much criticism. The above discussion has looked at different ways in which the Orders have failed, including the lack of consistency across local authorities, problems with the financial support given by local authorities (inconsistent across different parts of the country, and seldom as generous as that given to foster carers), the fact the orders end at 18, and the relatively short length of time that authorities allow for the orders to be applied for. These problems mean that the Orders are less useful than they might be. This study has therefore suggested a number of ways in which the Orders might be extended, to address these problems, including extending the length of time which is given for Court reports and the administration of the orders, and better and more consistent support from local authorities, financial and otherwise. The study has also suggested some areas for further research.
Although the study has confined itself to a discussion of existing literature, it is felt that this has provided a useful critique of the way Special Guardianship Orders have been used so far, and also that a basis for further research and primary research studies has been suggested.

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