Written and recorded by Safda Mahmood
Hello. Welcome, everybody. My name. Softer Mahmoud on. I'm pleased to welcome you Tuesday section, which is being recorded as of June 2017 whereby we looking at the issues for any special guardianship or adoption and in particular looking at what? The differences between these and indeed also the similarities between these. So over the course of this bite size session, I'm going to be taking you through various elements surrounding the special gone supporters and also adoption orders. Looking at issues such as who can apply what the assessment closest is and take you through somebody key case law surrounding this, these areas. And then I look at specifically the position so and in the regulations both for adoption and special gunship and also looking at what the differences are in that regard. So less than start with special garden supporters. And these orders then came to effect on the 30th of December 2000 and five as a result of the Adoption and Children Act off 2002. On that, these orders then came to effect as by way off an insertion into the Children Act sections 14 a to F off the Children Act cover special garden supporters in terms of who can apply for these well parents of the child cannot apply becomes to become a special guardians for their Children. But you find that typically the types of people who will be applying for these will be, for example, extended family members on also friends in some cases off the child concerned. But the parent of a child cannot become the special guardian for their own child, and joint applicants can apply. Don't need to be married. That may well be civil partners. There may be in an enduring family relationship, for example, on the court can in fact, make these orders off their own initiative in any event, within any family proceedings when they are concerned with the child's welfare. Onda. Ordinarily what would happen is once on if any application ihsaa wonder to a person wishes to make them. This is where the prospective special garden would be required ordinarily, to give notice to local thought in their area. They would then carry out on assessment process on ordinarily Denard. His period is that one would need to give three months written notice to the local authority of the intention to apply for special guardianship. Now there is an exception to that self example. Let's say you are acting for a proposed special guardian on your client Gets noticed. Toothy local authority ordinarily like to say they would have to give notice for many appeared of three months before they can then make their application. But let's say, in fact, there is also alongside this competing adoption application by somebody in that situation. The person would not be expected to give the three months notice because, of course, by doing so, this would only neighbor the adoption to be heard. Whilst that person perspective Special Garden is still waiting for their three month notice period to expire before the conforming lodged there special gunship application. So other than those types of limited cases in all other cases, there would be requirement to give notice three months notice to the local authority before that person can actually apply for a special garden supporter. Now, one of the aspects when which the court does need to look at if and when any application has been lodged for a special gun supporter is one off contact, and this is where when the court is considering whether or not to make a special gone supported. They do need to ask themselves as to whether or not to make what used to be accord a contact order, of course, under Section eight of the Children. And now, of course, what's known as the Child Arrangements Order specifying spending time with or otherwise having contact with. So that's something that they would need to consider at the point at which they are making the special guardianship. Porter on this may will be necessary in some situations, with a view to ensuring that one maintains the length and the relationship between the child and, say, the parent. Indoor circumstances Falling Deep Point at which any special guardianship porter is made variation and discharge is such that, if, say, a special gunship porter is made than in the future, it can be such that the order is very do, indeed discharged. If, say, the child's parents wish to apply for variation or discharge, they would require leave of the court Onda. To get leave, they would have to show that there is a sufficient changing circumstances under the welfare of a child is such that leave should be granted indoor circumstances so they may well, which they consider leave in the future. And the assessment process hasn't mentioned four special guardianship is that the local salty, as I mentioned, would need t ordinarily be given three months notice are by any person who wishes to become a special guardian doing this time. The local thought he wouldn't be carrying out the assessment process and compiling a report which sets out their opinion under their viewers to defeat ability of that person being considered. Onda certainly supported and granted a special guardianship order on, for example, Section 14 a subsection eight off the Children that provides that upon receipt of the notice, the local authorities then required to investigate the circumstances and also then to prepare report where they deal with setting out the suitability of that person being a special guardian on also setting out specifically any other matters which day field, of course, be assisted with his father's deciding or not, whether or not that person should or should not be a special guardian. Now let's look at the effect of the special Garden supporter and the special gunship. Porter is such that it does give prevent a responsibility to the special guardian. But the current responsibility which they will acquire is such that is such that subject to any other order, respect of a child under the Children Act, Special Guardian may exercise parental responsibility at the exclusion of all other people would print responsibility other than another special guardian. This is subject to one exception. Which is exception is, if the law requires the consent of more than one person, would prevent responsibility. So putting it another way, what you find is that, if, say, set of grandparents became special guardians for their grandson, then they would be in a position to be objected to exercise parental responsibility the exclusion of all other people in print responsibility, including that of the parents, subject to limited exceptions such as they would not be permitted. A change. Dig grandsons Certainly, for example, without the consent of parents with PR or leave of the court, they would not be able to agree or consent to charming taken or removed from the jurisdiction without the consent off the pants or leave of the court. If it's for a pair of more than three months, so they are limitations as far as that is concerned. Also, for example, they cannot consent to the child being adopted. For example, even a special guardians indoor circumstances. Okay, so you can see there are some limitations which would therefore need to be born in mind when you're looking at Special Gunship. But what is important is that even though under special gone supporter, the parents and the example of been using will continue to have prevented responsibility there. Exercise off the PR that they have will be somewhat limited by virtue of the fact that the special guardians would have PR, which is sometimes referred to as elevated PR which allows him to exercise that to exclusion off other people Would PR other than, like, certainly limited situations that I've mentioned Now this is where places such as re are a child. It is quite an important case in this regard. Cites the case of Ri are a child subnormal ex city council against LR. This was this 2007 case on what this case highlights is the fact that when a prospective special guardian does wish to be assessed as a special guarding with a view did and of course, becoming a special guardian for the child. They are required ordinarily to give notice to the local authority, but that notice wouldn't necessarily need to be acted upon by the local authority. Whether it needs to be actual upon or not depends upon whether or not that perspective special Garden is in fact, one who comes within Section 10 Subsection four or Section 10 Subsection five. Off the Children Act, Section 10 Subsection four. As you know, we're cover situations where people are applying for orders where they are the parent. For example, Section 10 Subsection five covers situations where people applying for certain section eight orders and, in this case, special gone supporters whereby they have had a child living with them for particular period of time, for example. So certainly if the prospective special gun and comes within section 10 4 10 5 then when they do give notice to the local authority, they're not locked. I thought you'd be expected to action that, and they would carry out the necessary assessment. But if they don't come within section 10 4 10 5 then they would require leave of the court first, and that would be an application of the section tense of section nine of the Children that would be required to initially seek leave on once and if leave is granted, it would then give notice local authority in that would in action the local authority required to carry out the necessary assessment. Okay, now one of the other cases which really looks at this issue in more detail. This, sir, insofar as the position with Special gunship versus adoption is the case of Ri s on what this case really highlights is the position at surrounding the difference between special guardianship or adoption. And as we'll see shortly with adoption, the big difference between this and special gunship is that with special gunship, the parents and other persons were purged. Responsibility will have to, of course, retained. Put responsibility of the payments. Do. Of course, we made a child's legal and, of course, biological parents. Although the special garden would be up to exercise power to responsibility to the exclusion of all other people, would PR did another special guardian on with some limited exceptions but with adoption, the adopters, in fact, pick up parental responsibility and everybody else loses this. And if we could see that this can potentially effective family dynamics quite significantly. If it is the case, that's a family member, for example, with to adopt the child on this is the issue that was raised in the case of V s. A Child is 2007 case. This is one way a lady she talked to become a special guardian for so she sought to in fact become adoptive. For particular child charter was six years old, but the court instead decides to make her subject to a special gunship port in relationships. Child on the court took the view that if the child was to be adopted by this lady, given that she was in fact a relative, that would potentially distort to family dynamic since the fathers the relationship between this child on the relative was concerned. The judge therefore felt that in the circumstances, the right and proper order would be special gunship because that would enable the family dynamics to in fact be maintained as they were. If such an order was made about the same time to ensure that the court could save gonna promoting a chance welfare by giving the applicant s a level of parental responsibility, which they could, of course, exclude other people from exercising in some respects. Now, when you are looking at special guardianship, it's important to bear in mind that day body Special gunship support services. These are such that in England they are the Special Gunship Regulations 2000 and five, which cover this in any way was, It's the special Gunship Way Yours Regulations of 2005 as amended on this is where by the local authority in that area, who is coming out the assessment. They would then need to carry out an assessment in this regard to look at what support services should be provided. A may need to be provided, which could include aspects related, for example, counseling, advice and assistance on such other services that are prescribed. This could take the format off for you, for example, financial support in appropriate cases, also on also services to enable at, say, contact to be maintained between Sadie, Child and the family members, for example, in those situations, and also to provide services. It's Fars, providing services towards therapy for a child, and assistance for ensuring continues a relationship between a child and a special guardian, for example, Case are very important. Teoh to just bear in mind that those services are there, which would need to be looked at to see what should be provided in the circumstances now in England, we had some amendments which came into effect in February 2000 and 16 and these were the Special Gunship Amendment regulations off 2000 and 16 thes that came into effect on the 29th of February 2016. And the effect of these Arthur to strengthen the assessment process is so far special guardianship is concerned. Eso. One of the key things from these regulations is that the assessor needs to ensure that they carry out a summer enough assessment to look particularly at the nature of the perspective. Special Gone is current Hannity past relationship with the child on also on assessment, looking specifically at one of dressing parenting capacity, for example, their understanding, often ability to be able to meet the child's current on likely future needs in particular, and also really to identify Denise that the child may have arising from in the future. No second chances now less than start looking at the position with adoption with beauty and looking at the difference between adoption and special guardianship. It's farce. Adoption is concerned. One of the principal axis that came to effect was the adoption Children after 2002. Most of this act was implemented on the 30th of December 2000 and five on what this acted is it brought in line at the position with adoption more in line with the Children activated? Nine. So, for example, the welfare test underworld for checklist was also apply to decisions relating to adoption, although the adoption Children in 2002 itself, built in its own version of the welfare check list are set out. Willing Section one, subsection 40 act. So what key differences between that checklist on the Children Act checklist is for the purposes of adoption related matters one has to look at. For example, the feasibility of the child remained remaining a member of the original family, the willingness off the birth family to continue to wish for that child to remain a member of the original family, which isn't feelings also to be regarded considered. And that's very important before Boggs, of course, and indeed, adoption panels and all professionals really working with Children in the circumstances because it heightens the need to ensure that wonder specifically after need to maintain the relationship between a child on the birth family. If indeed, this is felt to be the right plan in the circumstances and therefore the idea of parallel planning or twin track planning this one that needs to be and short, it looked upon because, of course, the after primary legislation requires that to be done now would d act. The act brought in placement orders, which take the form off. Still, allowing the parents on all the parties would print responsibility to maintain parental responsibility. Wasson If think placement order is made on that once a nifty child is placed for adoption and the perspective, adopters will also pick up parental responsibility. And that will only be lost on Day four, given to the perspective adopted exclusively at the point at which the child is in fact adopted. Even though the act also brought in special guardianship has been seen, Special Gunship does work somewhat differently to adoption, as we've seen now what's been the effect, principally then off off adoption and who can actually adopt him to be law well in terms of who can adopt, Section 49 of the act provides that single person can continue to act as a kind of a couple. But a couple for the pips of this act, which came to effect on the 30 of December 2005 defines a couple of somebody who is married, whether same sex or otherwise, living as partners in in doing family relationship on Day four. This will of course, include same sex couples. For example, Married couples on also doors who are in doing family relationships, of course, will include also cohabit ease in that regard. Now the effective adoption orders has set out within Section 67 subsection one of the adoption and Children 2002 which has the effect as from the date that the child is in fact adopted. Adopted child is treated as if though they were born to the child of the A doctoral adopters and therefore everybody else loses parental responsibility in that regard as a Section 46 for example, gives parental responsibility for the child to your doctoral are doctors in those circumstances. Now there are two methods through which a child could be placed for adoption. The first is what's known as a Section 19 consent of Section 19 off the adoption of Children at 2002. And this is where, by parent would parent's responsibility on. If both parents have to rent responsibly to both, their consent was is required, and this is where they can consented, a charming place for adoption under Section 19. Now that consent they provide would need to be provided to the reporting officer, which is the office of Calf CASS. He would need to go out and see them on that consent would need to be obtained at a time after the her child is at least six weeks old, to ensure that the mother in particular in that situation, is in a position to be able to give a viable and informed consent in all circumstances. This if the section 19 consent and has provided this than permits the adoption agency to place a child for adoption. And also there's a Section 20 consent Section 20 of the adoption of Children at 2002 which allows the consent to be provided by the parent, would print responsibility for the child to in fact subsequently be adopted as well. In the future, you'll appreciate that there's not many cases. Ray of parents indoor situations will in fact consent to the child being placed for adoption. And therefore this is whereby, in fact, locks authorities in their capacity as an adoption agency may instead be looking to seek a placement order under Section 21 of the act on a placement toward his dual authority, which local authority we get. Do we have to place a child for adoption with prospective doctors Charles and Bison on this? To obtain a placement toward a one would require either consent or repairs with current responsibility, and if not, the local thought would be invited to court to dispense with their consent. Under Section 52 of the ACT, the main grand a soft news it is that the welfare of a child requires the consent to be dispensed with now, as I mentioned earlier, the position with Special gunship is that WAAS, the local authority assessing de person for a za potential special guardian. There is also the Special Gunship support services regulations, which would require them to carry out on assessment as to what support may be required. We've got similar provisions as far as adoption is concerned in that the adoption supports heresies in England and also the equivalent in Wales. The adoption support saves his local authorities. Wells regulations of 2005 are such that the local authority, in its capacity as adoption agency, would look at what supports their received may be required on this could also take the form of, for example, financial support services in relation arranges for contact, for example, repeat. It needs being met in that regard. So again, it's similar in some respects to special guardianship in that regard. Now, when local fold he's a neck Passes, an adoption agency are looking at making plans for adoption for Children. Two of the leading cases that don't need to give thought to and consideration to is are, firstly, the case of Re Be a Child, this 2015 case on and secondly, the case of Ri Bs, this other 2013 case. It's a farce freebies concerned. What this emphasizes is that given the nature of adoption in that it is one whereby one is severing the relationship between the child and apparent saw that it's the complete transplantation of parental responsibility from apparent to prospective adopters that in all circumstances to do that and therefore to make an adoption order, one should only do this in exceptional circumstances where nothing else will do. And that's why it's very important for local authorities to ensure that they have considered all realistic options to ensure that if adoption is divide planned for the child, then this one whereby date makes they seek such an order. But I do have to be a process for the court. No other viable option is the appropriate option into circumstances, and that, in fact, adoption is into trance. Best interests linked with that is the later case of Ri Bs Children Adoption. Application of threshold criteria on this case highlights the fact that it would be inappropriate for the local authority to carry out a linear evaluation on. Instead, they have to carry out what's known as a a global holistic evaluation, which basically means that if they have, for example, ruled out parents as potential terrorists and they mustn't automatically assume that they are going to proceed with a planned for adoption, did he to look at what it or the alternative realistic options. So, if example, what about the position placing with family members? Wasa position would looking out, for example, long term fostering. For example, what's the position with special guardianship, for example, in that regard? And therefore, this is where you can see that one of the key differences between special gunship and adoption is that with special garden ship, it may well be one of the realistic options which may well be the option at a local authority opt for when they seek and which the court may approve open up of adoption. Because when it comes to adoption, there should only be permitted like us. They were nothing else I would take. So therefore, just to polish together, you can see one of the fundamental differences between special gunship adoption is that with special garden ship, the birth family and other part persons will continue to retain their parent responsibility. With all the special, Garnett will be objective size that PR exclusion of all other people other than special guardian. It's in limited situations. They they would still require consent, but it's a farce. Adoption is concerned. All other parties will lose their parent responsibility. And this will be given exclusively, toothy adopters hoped has been a useful session for you. And thank you very much for listening on and speaking. Actually. Thank you. Bye for now.
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