Citation, commencement and application
1.—(1) These
Regulations may be cited as the Special Guardianship Regulations 2005 and shall
come into force on 30th December 2005.
(2) These Regulations apply to England only.
Interpretation
2.—(1) In
these Regulations—
“the Act” means the Children Act 1989;
“couple” has the same meaning as in
section 144(4) of the Adoption and Children Act 2002();
“Local Health Board” means a Local
Health Board established by the National Assembly for Wales under section 16BA
of the National Health Service Act 1977();
“prospective special guardian” means a
person—
(a)
who has given notice to a local
authority under section 14A(7) of the Act of his intention to make an
application for a special guardianship order in accordance with section 14A(3)
of the Act; or
(b)
in respect of whom a court has
requested that a local authority conduct an investigation and prepare a report
pursuant to section 14A(9) of the Act;
“relevant child” means a child in
respect of whom—
(a)
a special guardianship order is in
force;
(b)
a person has given notice to a local
authority under section 14A(7) of the Act of his intention to make an
application for a special guardianship order in accordance with section 14A(3)
of the Act; or
(c)
a court is considering whether a
special guardianship order should be made and has asked a local authority to
conduct an investigation and prepare a report pursuant to section 14A(9) of the
Act.
(2) In any case where—
(a)a person aged
18 or over is in full-time education or training; and
(b)immediately
before he reached the age of 18, financial support was payable in relation to
him under Chapter 2 of Part 2 of these Regulations,
then, for the purposes of the continued provision of
financial support and any review of financial support, these Regulations shall
have effect in relation to him as if he were still a child.
PART 2SPECIAL GUARDIANSHIP SUPPORT SERVICES
CHAPTER 1PROVISION OF SERVICES
Prescribed services
3.—(1) For the
purposes of section 14F(1)(b) of the Act the following services are prescribed
as special guardianship support services (in addition to counselling, advice and
information)—
(a)financial
support payable under Chapter 2;
(b)services to
enable groups of—
(i)relevant
children;
(ii)special
guardians;
(iii)prospective special guardians; and
(iv)parents
of relevant children,
to discuss matters relating to special guardianship;
(c)assistance,
including mediation services, in relation to arrangements for contact between a
relevant child and—
(i)his parent
or a relative of his; or
(ii)any other
person with whom such a child has a relationship which appears to the local
authority to be beneficial to the welfare of the child having regard to the
factors specified in section 1(3) of the Act;
(d)services in
relation to the therapeutic needs of a relevant child;
(e)assistance
for the purpose of ensuring the continuance of the relationship between a
relevant child and a special guardian or prospective special guardian,
including—
(i)training
for that person to meet any special needs of that child;
(ii)subject
to paragraph (3), respite care;
(iii)mediation in relation to matters relating to
special guardianship orders.
(2) The services prescribed in paragraph (1)(b) to (e)
may include giving assistance in cash.
(3) For the purposes of paragraph (1)(e)(ii) respite care
that consists of the provision of accommodation must be accommodation provided
by or on behalf of a local authority under section 23 of the Act (accommodation
of looked after children) or by a voluntary organisation under section 59 of the
Act.
Arrangements for securing provision of services
4.—(1) The
following are prescribed for the purposes of section 14F(9)(b) of the Act
(persons who may provide special guardianship support services)—
(a)a registered
adoption society;
(b)a registered
adoption support agency;
(c)a registered
fostering agency;
(d)a Local
Health Board or Primary Care Trust;
(e)a local
education authority.
(2) In paragraph (1)—
(a)“registered
adoption society” has the same meaning as in the Adoption and Children Act
2002;
(b)“adoption
support agency” has the same meaning as in the Adoption and Children Act 2002
and “fostering agency” has the same meaning as in the Care Standards Act 2000() and “registered” in relation to any such agency means that
a person is registered in respect of it under Part 2 of the Care Standards Act
2000.
Services for persons outside the area
5.—(1) Section
14F of the Act (special guardianship support services) applies to a local
authority in respect of the following persons who are outside the authority’s
area—
(a)a relevant
child who is looked after by the local authority or was looked after by the
local authority immediately before the making of a special guardianship
order;
(b)a special
guardian or prospective special guardian of such a child;
(c)a child of a
special guardian or prospective special guardian mentioned in sub-paragraph
(b).
(2) But section 14F ceases to apply at the end of the
period of three years from the date of the special guardianship order except in
a case where the local authority are providing financial support under Chapter 2
and the decision to provide that support was made before the making of the
order.
(3) Nothing in this regulation prevents a local authority
from providing special guardianship support services to persons outside their
area where they consider it appropriate to do so.
CHAPTER 2PROVISION OF FINANCIAL SUPPORT
Circumstances in which financial support is
payable
6.—(1) Financial support is payable under this Chapter to
a special guardian or prospective special guardian—
(a)to facilitate
arrangements for a person to become the special guardian of a child where the
local authority consider such arrangements to be beneficial to the child’s
welfare; or
(b)to support
the continuation of such arrangements after a special guardianship order is
made.
(2) Such support is payable only in the following
circumstances—
(a)where the
local authority consider that it is necessary to ensure that the special
guardian or prospective special guardian can look after the child;
(b)where the
local authority consider that the child needs special care which requires a
greater expenditure of resources than would otherwise be the case because of his
illness, disability, emotional or behavioural difficulties or the consequences
of his past abuse or neglect;
(c)where the
local authority consider that it is appropriate to contribute to any legal
costs, including court fees, of a special guardian or prospective special
guardian, as the case may be, associated with—
(i)the making
of a special guardianship order or any application to vary or discharge such an
order;
(ii)an
application for an order under section 8 of the Act;
(iii)an
order for financial provision to be made to or for the benefit of the child;
or
(d)where the
local authority consider that it is appropriate to contribute to the expenditure
necessary for the purposes of accommodating and maintaining the child, including
the provision of furniture and domestic equipment, alterations to and
adaptations of the home, provision of means of transport and provision of
clothing, toys and other items necessary for the purpose of looking after the
child.
Remuneration for former foster parents
7.—(1) Financial support under this Chapter may include
an element of remuneration but only where the decision to include it is taken
before the special guardianship order is made and the local authority consider
it to be necessary in order to facilitate arrangements for a person to become a
special guardian in a case where—
(a)the special
guardian or prospective special guardian has been a local authority foster
parent in respect of the child; and
(b)an element of
remuneration was included in the payments made by the local authority to that
person in relation to his fostering the child.
(2) But that element of remuneration ceases to be payable
after the expiry of the period of two years from the making of the special
guardianship order unless the local authority consider its continuation to be
necessary having regard to the exceptional needs of the child or any other
exceptional circumstances.
Payment of financial support
8. Financial
support under this Chapter may be paid—
(a)periodically,
if it is provided to meet a need which is likely to give rise to recurring
expenditure; or
(b)in any other
case by a single payment or, if the local authority and the special guardian or
prospective special guardian agree, by instalments.
Cessation of financial support
9. Financial
support ceases to be payable to a special guardian or prospective special
guardian if—
(a)the child
ceases to have a home with him;
(b)the child
ceases full-time education or training and commences employment;
(c)the child
qualifies for income support or jobseeker’s allowance in his own right;
or
(d)the child
attains the age of 18 unless he continues in full-time education or training,
when it may continue until the end of the course or training he is then
undertaking.
Conditions
10.—(1) Where
financial support is to be paid periodically it is not payable until the special
guardian or prospective special guardian agrees to the following conditions—
(a)that he will
inform the local authority immediately if—
(i)he changes
his address;
(ii)the
child dies;
(iii)any of
the changes mentioned in regulation 9 (cessation of financial support) occurs;
or
(iv)there is
a change in his financial circumstances or the financial needs or resources of
the child which may affect the amount of financial support payable to
him,
and, where the information is given orally, to
confirm it in writing within seven days;
(b)that he will
complete and supply the local authority with an annual statement as to the
following matters—
(i)his
financial circumstances;
(ii)the
financial needs and resources of the child;
(iii)his
address and whether the child still has a home with him.
(2) The local authority may provide financial support
subject to any other conditions they consider appropriate, including the
timescale within which, and purposes for which, any payment of financial support
should be utilised.
(3) Subject to paragraph (4), where any condition imposed
in accordance with this regulation is not complied with, the local authority
may—
(a)suspend or
terminate payment of financial support; and
(b)seek to
recover all or part of the financial support they have paid.
(4) Where the condition not complied with is a failure to
provide an annual statement in accordance with an agreement referred to in
paragraph (1), the local authority shall not take any steps under paragraph (3)
until—
(a)they have
sent to the person who entered into the agreement a written reminder of the need
to provide an annual statement; and
(b)28 days have
expired since the date on which that reminder was sent.
CHAPTER 3ASSESSMENT AND PLANS
Request for assessment
11.—(1) The
following persons are prescribed for the purposes of section 14F(3) of the Act
(persons at whose request an assessment must be carried out)—
(a)a relevant
child who is looked after by the local authority or was looked after by the
local authority immediately before the making of a special guardianship
order;
(b)a special
guardian or prospective special guardian of such a child;
(c)a parent of
such a child.
(2) Paragraph (3) applies if the local authority receive
a written request from or, in the case of a child, on behalf of any of the
following persons (not being a person falling within paragraph (1)) for an
assessment of his needs for special guardianship support services—
(a)a person
mentioned in section 14F(3)(a) to (c) of the Act;
(b)a child of a
special guardian;
(c)any person
whom the local authority consider to have a significant and ongoing relationship
with a relevant child.
(3) The local authority must, if they are minded not to
carry out an assessment, give the person notice of the proposed decision
(including the reasons for it) and must allow him a reasonable opportunity to
make representations in relation to that decision.
(4) Where the request of a person for an assessment
relates to a particular special guardianship support service, or it appears to
the local authority that a person’s needs for special guardianship support
services may be adequately assessed by reference to a particular special
guardianship support service, the local authority may carry out the assessment
by reference to that service only.
Procedure for assessment
12.—(1) Where
the local authority carry out an assessment of a person’s needs for special
guardianship support services they must have regard to such of the following
considerations as are relevant to the assessment—
(a)the
developmental needs of the child;
(b)the
parenting capacity of the special guardian or prospective special guardian, as
the case may be;
(c)the family
and environmental factors that have shaped the life of the child;
(d)what the
life of the child might be like with the person falling within sub-paragraph
(b);
(e)any previous
assessments undertaken in relation to the child or a person falling within
sub-paragraph (b);
(f)the needs of
a person falling within sub-paragraph (b) and of that person’s family;
(g)where it
appears to the local authority that there is a pre-existing relationship between
a person falling within sub-paragraph (b) and the parent of the child, the
likely impact of the special guardianship order on the relationships between
that person, that child and that parent.
(2) The local authority must, where they consider it
appropriate to do so—
(a)interview
the person whose needs for special guardianship support services are being
assessed;
(b)where the
person falling within sub-paragraph (a) is a child, interview—
(i)any
special guardian or prospective special guardian, as the case may be, of the
child; or
(ii)any
adult the local authority consider it appropriate to interview.
(3) Where it appears to the local authority that the
person may have a need for services from a Local Health Board, Primary Care
Trust or local education authority, they must, as part of the assessment,
consult that Local Health Board, Primary Care Trust or local education
authority.
(4) After undertaking an assessment, the local authority
must prepare a written report of the assessment.
Assessment of need for financial support
13.—(1) This
regulation applies where the local authority carry out an assessment of a
person’s need for financial support.
(2) In determining the amount of financial support, the
local authority must take account of any other grant, benefit, allowance or
resource which is available to the person in respect of his needs as a result of
becoming a special guardian of the child.
(3) Subject to paragraphs (4) and (5) the local authority
must also take account of the following considerations—
(a)the person’s
financial resources, including any tax credit or benefit, which would be
available to him if the child lived with him;
(b)the amount
required by the person in respect of his reasonable outgoings and commitments
(excluding outgoings in respect of the child);
(c)the
financial needs and resources of the child.
(4) The local authority must disregard the considerations
in paragraph (3) where they are considering providing financial support in
respect of legal costs, including court fees, in a case where a special
guardianship order is applied for in respect of a child who is looked after by
the local authority and the authority support the making of the order or an
application is made to vary or discharge a special guardianship order in respect
of such a child.
(5) The local authority may disregard any of the
considerations in paragraph (3)—
(a)where they
are considering providing financial support in respect of—
(i)initial
costs of accommodating a child who has been looked after by the local
authority;
(ii)recurring costs in respect of travel for the
purpose of visits between the child and a related person; or
(iii)any
special care referred to in regulation 6(2)(b) in relation to a child who has
been looked after by the local authority; or
(b)where they
are considering including an element of remuneration under regulation 7.
(6) In paragraph (5)(a)(ii) “related person” means a
relative of the child or any other person with whom the child has a relationship
which appears to the local authority to be beneficial to the welfare of the
child having regard to the factors specified in section 1(3) of the Act.
Plan
14.—(1) This
regulation applies in relation to the requirement in section 14F(6) of the Act
for the local authority to prepare a plan in accordance with which special
guardianship support services are to be provided.
(2) The local authority must prepare a plan if—
(a)they propose
to provide special guardianship support services to a person on more than one
occasion; and
(b)the services
are not limited to the provision of advice or information.
(3) Where it appears to the local authority that the
person may have a need for services from a Local Health Board, Primary Care
Trust or a local education authority, they must consult that Local Health Board,
Primary Care Trust or local education authority before preparing the plan.
(4) The local authority must nominate a person to monitor
the provision of the services in accordance with the plan.
Notice of proposal as to special guardianship support
services
15.—(1) Before making any decision under section 14F(5)
of the Act as to a person’s needs for special guardianship support services, the
local authority must allow the person an opportunity to make representations in
accordance with this regulation.
(2) The local authority must first give the person notice
of the proposed decision and the time allowed for making representations.
(3) The notice must contain the following information—
(a)a statement
as to the person’s needs for special guardianship support services;
(b)where the
assessment relates to his need for financial support, the basis upon which
financial support is determined;
(c)whether the
local authority propose to provide him with special guardianship support
services;
(d)the services
(if any) that are proposed to be provided to him;
(e)if financial
support is to be paid to him, the proposed amount that would be payable;
and
(f)any proposed
conditions under regulation 10(2).
(4) In a case where the local authority propose to
provide special guardianship support services and are required to prepare a plan
under section 14F(6) of the Act, the notice must be accompanied by a draft of
that plan.
(5) The local authority shall not make a decision until—
(a)the person
has made representations to the local authority or notified the local authority
that he is satisfied with the proposed decision and, where applicable, the draft
plan; or
(b)the period
of time for making representations has expired.
Notification of decision as to special guardianship
support services
16.—(1) After
making their decision under section 14F(5) of the Act as to whether to provide
special guardianship support services to a person, the local authority must give
the person notice of that decision, including the reasons for it.
(2) Where the local authority are required to prepare a
plan under section 14F(6) of the Act, the notice must include details of that
plan and the person nominated under regulation 14(4).
(3) If the local authority decide that financial support
is to be provided, the notice given under paragraph (1) must include the
following information—
(a)the method
of the determination of the amount of financial support;
(b)where
financial support is to be paid in instalments or periodically—
(i)the amount
of financial support;
(ii)the
frequency with which the payment will be made;
(iii)the
period for which financial support is to be paid;
(iv)when
payment will commence;
(c)where
financial support is to be paid as a single payment, when the payment is to be
made;
(d)where
financial support is to be paid subject to any conditions imposed in accordance
with regulation 10(2), those conditions, the date (if any) by which the
conditions are to be met and the consequences of failing to meet the
conditions;
(e)the
arrangements and procedure for review, variation and termination of financial
support;
(f)the
responsibilities of—
(i)the local
authority under regulations 17 and 18 (reviews); and
(ii)the
special guardian or prospective special guardian pursuant to any agreement
mentioned in regulation 10.
CHAPTER 4REVIEWS
Reviews: general procedure
17.—(1) This
regulation applies where the local authority provide special guardianship
support services for a person other than financial support payable periodically.
(2) The local authority must review the provision of such
services—
(a)if any
change in the person’s circumstances which may affect the provision of special
guardianship support services comes to their notice;
(b)at such
stage in the implementation of the plan as they consider appropriate; and
(c)in any
event, at least annually.
(3) Regulations 12 and 13 apply in relation to a review
under this regulation as they apply in relation to an assessment under Chapter 3
of this Part.
(4) If the local authority propose to vary or terminate
the provision of special guardianship support services to any person, before
making any decision as a result of the review they must give the person an
opportunity to make representations and for that purpose they must give him
notice of the proposed decision and the time allowed for making representations.
(5) The notice must contain the information mentioned in
regulation 15(3) and, if the local authority propose to revise the plan, a draft
of the revised plan.
(6) The local authority must, having regard to the review
and after considering any representations received within the period specified
in the notice—
(a)decide
whether to vary or terminate the provision of special guardianship support
services for the person; and
(b)where
appropriate, revise the plan.
(7) The local authority must give the person notice of
their decision (including the reasons for it) and, if applicable, details of the
revised plan.
Review of financial support payable
periodically
18.—(1) This
regulation applies where the local authority provide financial support for a
person payable periodically.
(2) The local authority must review the financial
support—
(a)on receipt
of the annual statement mentioned in regulation 10;
(b)if any
relevant change of circumstances or any breach of a condition mentioned in
regulation 10 comes to their notice; and
(c)at any stage
in the implementation of the plan that they consider appropriate.
(3) In paragraph (2) a relevant change of circumstances
is any of the changes that the person has agreed to notify under regulation 10.
(4) Regulations 12 and 13 apply in relation to a review
under this regulation as they apply in relation to an assessment under Chapter 3
of this Part.
(5) If the local authority propose, as a result of the
review, to reduce or terminate financial support or revise the plan, before
making that decision, the local authority must give the person an opportunity to
make representations and for that purpose they must give the person notice of
the proposed decision and the time allowed for making representations.
(6) But paragraph (5) does not prevent the local
authority from suspending payment of financial support pending that decision.
(7) The notice must contain the information mentioned in
regulation 15(3) and, if applicable, a draft of the revised plan.
(8) The local authority must, having regard to the
review, and after considering any representations received within the period
specified in the notice—
(a)decide
whether to vary or terminate payment of the financial support or whether to seek
to recover all or part of any financial support that has been paid; and
(b)where
appropriate, revise the plan.
(9) The local authority must give the person notice of
their decision, including the reasons for it, and, if applicable, the revised
plan.
CHAPTER 5URGENT CASES AND NOTICES
Urgent cases
19. Where
any requirement applicable to the local authority in this Part in relation to
carrying out an assessment, preparing a plan or giving notice would delay the
provision of a service in a case of urgency, that requirement does not apply.
Notices
20.—(1) Any
notice required to be given under this Part must be given in writing.
(2) If the person to whom notice is to be given is a
child and—
(a)it appears
to the local authority that the child is not of sufficient age and understanding
for it to be appropriate to give him such notice; or
(b)in all the
circumstances it is not appropriate to give him such notice,
the notice must be given to his special guardian or
prospective special guardian (where applicable) or otherwise to the adult the
local authority consider most appropriate.
PART 3MISCELLANEOUS PROVISIONS IN RELATION TO SPECIAL
GUARDIANSHIP
Court report
21. The
matters specified in the Schedule are the matters prescribed for the purposes of
section 14A(8)(b) of the Act (matters to be dealt with in report for the court).
Relevant authority for the purposes of section
24(5)(za) of the Act
22. For the
purposes of section 24(5)(za) of the Act (persons qualifying for advice and
assistance) the relevant authority shall be the local authority which last
looked after the person.
Signed by authority of the Secretary of State for Education and
Skills
Filkin
Parliamentary Under Secretary of State
Department for Education and Skills
4th April 2005
