Residence Orders / Special Guardianship Orders for Grandparents

Many grandparents or kinship carers who find that they are caring for children are told by social services to apply for an order to secure the children’s placement with them. They are told to get a residence order or special guardianship order.

What are residence orders?
These orders decide where the child is to live and with whom. The granting of a residence order to someone automatically gives him or her parental responsibility for the child if they do not already have it.

If the child is ‘looked after’ by the local authority, by getting parental responsibility a carer takes on responsibility for that child. Carers should be very wary of taking this step without contacting us.
Parental responsibility obtained as a result of a residence order will continue until the order ceases.
Parental responsibility is not removed from the parents but they are limited as to how they exercise this.

A residence order lasts until the child is 16 years old (or 18 years old if the circumstances of the case are exceptional and the court has ordered that it continue for longer).

A residence order can be granted to more than one person and can be made jointly to an unmarried couple.

A residence order prevents

  • changing the surname of the child
  • removing the child from the UK (for more than 1 month)
  • consenting to the child’s adoption

without the agreement of everyone with parental responsibility.

What is parental responsibility?
Parental responsibility (PR) is defined in section 3(1) Children Act 1989 as “all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property.”

In general terms, this means the power to make important decisions in relation to a child – for example decisions about where a child is to live, whether a child can receive medical treatment, what religion they follow and which school they attend.

What are special guardianship orders?
[section 14, Children Act 1989]

This court order gives the holder a more permanent arrangement but it is not lifelong like an adoption order. The special guardian may exercise parental responsibility to the exclusion of all others apart from another special guardian.

The intention is that the special guardian will have clear responsibility for all day to day decisions about the care of the child.

Social services are keen, particularly in care proceedings where the plan is for the child either to remain with a kinship carer or be placed with a relative or friend, to ask the court to make a special guardianship order. This is sometimes done without the carers being party to the care proceedings.

Carers who are being encouraged to take a special guardianship order should seek our specialist advice.

Obtaining a special guardianship order allows the following benefits:

  • Carers secure parental responsibility for the child which enables them to make decisions for the child up to a child’s 18th birthday.
  • Birth parents who have parental responsibility retain residual parental responsibility so the family link is maintained.
  • Birth parents have to apply for the permission of the court before they can make an application for their children to be returned to them.
  • Anyone considering special guardianship is required to notify the local authority in writing at least 3 months before they apply to court.

Support for Special Guardians
There can be support for special guardians.

Under section 14(f) of the Children Act 1989 (as amended) the local authority must make arrangements for the provision of special guardianship support services.

Support could take the form of:

  • Counselling advice or information
  • Therapeutic services for the child
  • Group meetings for children, special guardians or parents (before or after the making of a special guardianship order) to discuss matters relating to special guardianship
  • Assistance for the child in relation to contact with significant people, including mediation
  • Advice and support to the child and special guardian, including respite care
  • Financial support

For more information on residence orders and special guardianship orders go to www.frg.org.uk. This has very detailed advice sheets on both orders.