Children Act 1989, section 14A

Special guardianship orders

Part II Orders With Respect To Children In Family Proceedings

(1) A “special guardianship order” is an order appointing one or more individuals to be a child’s “special guardian” (or special guardians).

(2)A special guardian—

(a)must be aged eighteen or over; and

(b)must not be a parent of the child in question,

and subsections (3) to (6) are to be read in that light.

(3)The court may make a special guardianship order with respect to any child on the application of an individual who—

(a)is entitled to make such an application with respect to the child; or

(b)has obtained the leave of the court to make the application,

or on the joint application of more than one such individual.

(4)Section 9(3) applies in relation to an application for leave to apply for a special guardianship order as it applies in relation to an application for leave to apply for a section 8 order.

(5)The individuals who are entitled to apply for a special guardianship order with respect to a child are—

(a)any guardian of the child;

(b)any individual [F211 who is named in a child arrangements order as a person with whom the child is to live;F211]

(c)any individual listed in subsection (5)(b) or (c) of section 10 (as read with subsection (10) of that section);

(d)a local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application.[F212 ;

(e)a relative with whom the child has lived for a period of at least one year immediately preceding the application.F212]

(6)The court may also make a special guardianship order with respect to a child in any family proceedings in which a question arises with respect to the welfare of the child if—

(a)an application for the order has been made by an individual who falls within subsection (3)(a) or (b) (or more than one such individual jointly); or

(b)the court considers that a special guardianship order should be made even though no such application has been made.

(7)No individual may make an application under subsection (3) or (6)(a) unless, before the beginning of the period of three months ending with the date of the application, he has given written notice of his intention to make the application—

(a)if the child in question is being looked after by a local authority, to that local authority, or

(b)otherwise, to the local authority in whose area the individual is ordinarily resident.

(8)On receipt of such a notice, the local authority must investigate the matter and prepare a report for the court dealing with—

(a)the suitability of the applicant to be a special guardian;

(b)such matters (if any) as may be prescribed by the Secretary of State; and

(c)any other matter which the local authority consider to be relevant.

(9)The court may itself ask a local authority to conduct such an investigation and prepare such a report, and the local authority must do so.

(10)The local authority may make such arrangements as they see fit for any person to act on their behalf in connection with conducting an investigation or preparing a report referred to in subsection (8) or (9).

(11)The court may not make a special guardianship order unless it has received a report dealing with the matters referred to in subsection (8).

(12)Subsections (8) and (9) of section 10 apply in relation to special guardianship orders as they apply in relation to section 8 orders.

(13)This section is subject to section 29(5) and (6) of the Adoption and Children Act 2002.

Definitions used in section 14A 12

the order

(a) an order under paragraph 1(2)(a) or (b) for the making or securing of periodical payments in favour of more than one child (“the order") is in force;

Defined in Sch.1 para.6(9) · see it in the full Act
child

16 (1) In this Schedule “child” includes, in any case where an application is made under paragraph 2 or 6 in relation to a person who has reached the age of eighteen, that person.

Defined in Sch.1 para.16(1) · see it in the full Act

“child” means, subject to paragraph 16 of Schedule 1, a person under the age of eighteen;

Defined in s.105(1) · see it in the full Act
special guardian

“special guardian” and “special guardianship order” have the meaning given by section 14A;

Defined in s.105(1) · see it in the full Act
parent

(2) In this Schedule, except paragraphs 2 and 15, “parent” includes—

(a) any party to a marriage (whether or not subsisting) in relation to whom the child concerned is a child of the family, and

(b) any civil partner in a civil partnership (whether or not subsisting) in relation to whom the child concerned is a child of the family;

Defined in Sch.1 para.16(2) · see it in the full Act

21 In this Part of this Schedule “parent” has the same meaning as in the Education Act 1996 . ).

Defined in Sch.3 para.21 · see it in the full Act
the court

(7) For the purposes of this Act “the court” means the High Court or the family court .

Defined in s.92(7) · see it in the full Act
special guardianship order

“special guardian” and “special guardianship order” have the meaning given by section 14A;

Defined in s.105(1) · see it in the full Act
child arrangements order

"child arrangements order " means an order regulating arrangements relating to any of the following—

(a)

with whom a child is to live, spend time or otherwise have contact, and

(b)

when a child is to live, spend time or otherwise have contact with any person;

Defined in s.8(1) · see it in the full Act

“child arrangements order” has the meaning given by section 8(1);

Defined in s.105(1) · see it in the full Act
local authority foster parent

“local authority foster parent” means a person authorised as such in accordance with regulations made by virtue of—

(a)

paragraph 12F of Schedule 2; or

(b)

sections 87 and 93 of the Social Services and Well-being (Wales) Act 2014 (regulations providing for approval of local authority foster parents);

Defined in s.105(1) · see it in the full Act

“local authority foster parent” has the meaning given in section 22C(12);

Defined in s.105(1) · see it in the full Act
relative

“relative”, in relation to a child, means a grandparent, brother, sister, uncle or aunt (whether of the full blood or half blood or by marriage or civil partnership) or step-parent;

Defined in s.105(1) · see it in the full Act
family proceedings

“family proceedings” has the meaning given by section 8(3);

Defined in s.105(1) · see it in the full Act

(3) For the purposes of this Act “family proceedings” means any proceedings—

(a)under the inherent jurisdiction of the High Court in relation to children; and

(b)under the enactments mentioned in subsection (4),

Defined in s.8(3) · see it in the full Act
local authority

“local authority” means, in relation to England ..., the council of a county, a metropolitan district, a London Borough or the Common Council of the City of London in relation to Wales, the council of a county or a county borough and, in relation to Scotland, a local authority within the meaning of section 1(2) of the Social Work (Scotland) Act 1968 ;

Defined in s.105(1) · see it in the full Act
prescribed

“prescribed” means prescribed by regulations made under this Act;

Defined in s.105(1) · see it in the full Act

Cases considering section 14A 30

FL (A Child), Re

[2020] EWCA Civ 20 · 22 January 2020Interprets

The court rejected the late contention that the section precluded a special guardianship order without a formal application or a local authority assessment. The detailed requirements were satisfied for the reasons given under subsections (6), (8) and (11). (see paras [28]; [30]) The court applied the requirement that a special guardianship order cannot be made unless the court has received a report addressing the matters in s.14A(8). It held that the independent social worker’s report met that requirement. (see para [30]) The court held that this provision permits the making of a special guardianship order even where no application for such an order has been made. (see para [30]) The court held that the matters required for the special guardianship report were fully assessed in the independent social worker’s report. This satisfied the linked report requirement in s.14A(11). (see para [30])

In the matter of P-S (Children)

[2018] EWCA Civ 1407 · 18 June 2018Limits

Read with the specified related provisions, this provision entitled the grandparents to apply for special guardianship orders if the local authority consented. The court identified this as a protection bypassed by reliance on the court’s own-motion power. (see [52]-[54]) The residual power to make a special guardianship order of the court’s own motion should not be the normal or default process because it tends to bypass statutory and procedural protections. It remains available where it serves the child’s interests and those protections can be addressed. (see [54]) The court noted that each set of paternal grandparents had been assessed as potential special guardians under the statutory assessment process. The assessments were unchallenged and supported the substituted orders. (see [10]; [57])

H (A Child) (Analysis of Realistic Options and SGOs)

[2015] EWCA Civ 406 · 29 April 2015Limits

The court cannot make an SGO without the required report. A different assessment may be treated as sufficient only after direct judicial scrutiny that permits disagreement to be heard. (see paras [27]; [28]) The power to make an SGO of the court’s own motion should not be the default. Without agreement that an application be dispensed with, its use requires a reasoned justification. (see para [26]) The local authority must prepare an SGO report. The court stressed that this requirement protects the child, persons with parental responsibility and prospective special guardians. (see paras [27]; [28])

10 more judgments, and what each says about section 14A, are in the case-law panel in the full Act.

Amendments and notes

4 notes from legislation.gov.uk

Amendments

  1. F210Ss. 14A-14G inserted (30.12.2005) by 2002 c. 38, ss. 115(1), 148 (with Sch. 4 paras. 6-8); S.I. 2005/2213, art. 2(k)
  2. F211Words in s. 14A(5)(b) substituted (22.4.2014) by Children and Families Act 2014 (c. 6), s. 139(6), Sch. 2 para. 24; S.I. 2014/889, art. 4(f) (with transitional provisions in S.I. 2014/1042, arts. 3, 4, 6-10) this amendment is subject to savings and/or transitional provisions, see the commentary.
  3. F212S. 14A(5)(e) inserted (1.9.2009) by Children and Young Persons Act 2008 (c. 23), ss. 38, 44; S.I. 2009/1921, art. 2(c); S.I. 2009/2273, art. 2(2)(l)

Modifications

  1. C14S. 14A(7) applied (with modifications) (30.12.2005) by 2002 c. 38, ss. 29(6), 148 (with Sch. 4 paras. 6-8); S.I. 2005/2213, art. 2(c)