UK: Special Guardianship Orders For Cross-Border Child Care Cases

There can be many reasons why the parents of a family are unable to care for their children, for whatever reason the Local Authorities have a duty to ensure that those children are protected, safe and must seek out the best solution for their custody.  Children whose lives have been disrupted by the fact that their parents cannot look after them prefer to have permanence over temporary foster parent placements; however, often, particularly older children, do not want to have the clean break from their family that adoption offers.  Special Guardianship orders evolved to provide a solution that would enable the child to have a secure situation during their minority without fracturing their family connection.

Children deserve to have certainty and a safe environment and the decision to evoke a Special Guardianship order, particularly if there is a cross-border element, is not taken lightly.  However, when this becomes necessary it is imperative to ensure that any legal advisors that are consulted have expertise in all the jurisdictions involved as if any errors are made which come to light after the order is made it may not be possible to remedy mistakes.

The best interests of children are, of course, paramount; the issues surrounding children of EU citizens living in the UK can frequently be complex, especially if the law and legal rights of another European country have to be considered.  There are currently estimated to be 5,000 children of EU nationals in Local Authority care in the UK.  If it becomes necessary to consider a more permanent solution regarding the care of a child, there are a range of options to contemplate, all solutions must be reviewed to achieve the best outcome for the child and some cases the best solution is for a Special Guardianship order to be sought from the court. 

A Special Guardianship order is permanent and conveys parental responsibility to the person or persons that the court believes offers the optimum choice of carer for the child until the age of 18 years; it does not remove parental responsibility from the parents as it does in the case of adoption. The person or persons chosen as a Special Guardian can be relatives, foster parents, a family friend or an existing de facto guardian; in practice, close relatives of the child are often chosen for this role.  The person or persons selected will make the day-to-day decisions on behalf of the child but as the parents still retain parental control, for the more important decisions such as moving abroad, or changing the family name or adoption the parents must be consulted. 

Special Guardianship orders hold until the child reaches the age of 18 years provides the child with a long term placement and stability as well as giving the child a voice, as a parent would do, regarding education issues and medical decisions, should the need arise.  However, when there is a cross-border element to the matter care must be taken to ensure that there is no ambiguity and all parties fully understand the process and the responsibilities; there should be no opportunity in the future for any party to be able to suggest that there was a language barrier which prevented complete comprehension of the situation.   Special Guardianship can be revoked but only if the court gives permission for this option to be implemented at some stage at the time the order is made; permission is not always be granted.

Special Guardianship orders are an excellent solution in many cases but require the greatest diligence, particularly in respect of the legal ramifications, to ensure that no unexpected issues can arise in the future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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