Special Guardianship or Child Arrangements

Hello, Work everybody, my himself to my mood and I'll be taking you today for this bites I session called a special guardianship or child arrangements orders which one to pursue. So this is being recorded as of August 2000 and 17. Now what you find is sometimes when you're involved in Children proceedings, whether it's private Children, law or public child care proceedings does sometimes no doubt be discussions between parties as to which should be the appropriate order for consideration. Andi determination by the court. And this is where there are certainly some similarities, but also some essential differences between special gardens reporters on child arrangements and hence why? I thought he would be held for to go something through some of these aspects with you today to really bring you up to speed with someone of differences and really some of the things you need to ensure that you do accordingly. Advise your clients about accordingly. So we're gonna be looking at aspects of firstly, child arrangements will be looking at position with placement with parents will be looking at child arrangements, living with Andi like so hard. These do difference are similar to child arrangements I'll take you through elements off first section 13 of the act in particular on also Section 11 of the Children and Families Act on shared chart arrangements were then going to be spending some time looking at the position with special guardianship and somebody developing case law insofar as this is concerned. So let's let's take a case than where it say there's either private or public Children or proceedings. Onda. Let's say that the plan is that either say, the parent is applying for a child arrangements order specifying living with what used to be called a residence order or less. Even Cape sings on the local thought you're contemplating place the child with apparent. They may also already have the benefit of an interim care order. Or perhaps they may already be a final care order. And one is done implying for discharge of that with a view to superseding that with a child arrangements order specifying living with now. Like I say, China Vengeance orders thes came into effect on the 22nd of April 2014 by the Children and families like 2014 and these replaced what used to be previously Norma's residents. Orders, which settled the living arrangements for child and also contact orders, would specify just that. So that now, of course, he would have just one order, known as a child arrangements order, which would either specify spending time with or otherwise having contact with. Living with. The 11 order can actually provide for both provisions, and it's possible to have shared child arrangements orders specifying living with so that one is actually sharing their time between two or more parties. What used to be called a shared residents order previously. Now, when you are dealing with a child arrangements Order would specify living with very important to be aware of Section 13 subsection one of Section 13 subsection 2 13 1 provides that waas there is such an order in place. No one is permitted to in fact, change a child's surname nor to remove the child from the UK without written consent of everybody else would PR or leave of the court. But 13 2 provides that the person in whose favorite each art arrangements order specifying living with is they, in fact are permitted to take the child out of jurisdiction for a period of less than a month. So if you have a case where, say the mother has the benefit of a child, arrangements old, especially find living with, then it is possible for her, of course, to make arrangements for the child Teoh be taken at the UK by who? On her behalf by somebody else for a period of less than a month on This is where she would not require the consent of the father who may have PR in those circumstances. But if it's going to be for Appeared greater than the month, has a mention. And that's where the other parents consent. PR would be required on um, in that situation. If there were not getting the consent of the other person's with PR, then that's where they would need to make an application to court for a specific issue. Enable you have to do so now. This is where child arrangements Ford, especially finally from with would grant the holder prevent responsibility if they would not otherwise have. So mothers were nearly always have parental responsibility for those Children. As you know, there's certain situations where the mother could lose PR, such as if the child is adopted by somebody else. Or, for example, if say, there was a parental order mate in fact, unfavorably commissioning family pursuant to Section 54 off the Human Federalization on Embryology Act of 2000 and 81 of the other things which is very important, is say you've got a father who does have PR, as does Mother. The father seeks to remove the Children from the jurisdiction, but there is not in place a child arrangements or especially find living with now. This is where it's very important to advise Father that he would require the mother's consent in that situation fell to obtain the consent could amount to child abduction under Section one of the Child Abduction Act of 1984. That's very, very important to advise him in the absence of the child arrangement, sort of special find living with always specific issue order which permits removal indoors, limited situations or specific circumstances. He potentially will be committing an offence in that circumstances. Now one of the other things to bear in mind with chart arrangements order specifying living with his the court pursuant to Section 11 subsection before the Children may provide that if There is a child arrangements order specifying living with mating favor to more people who themselves do not live together. The daughter may specify the period in which they live in different households, so this is where effectively you can have the benefit of a shared child arrangements order, which were then specify living with. So it may be that the child's divide their time between, say, the mother and the father, and of second chances, which therefore would be permitted now. I mentioned earlier the position with Section 11 of the Children and families at 2014. This provision came into effect on the 22nd of October 2000 on day 14 on the effect of this particularly theme end Mint, which has brought him to Section one subsection six of the Children and in particular is that in certain situations where the court is considering whether to make or discharge certain types of orders, such a Section eight orders i e. Chart arrangements, orders specific issue orders, paid two steps, orders, applications for permanent responsibility, applications for discharge or removal, apparent responsibility than these types of situations. If the court is considering whether to make any other was these. There is actually a presumption that the apparent off the child concerned is such that there is a presumption that would be that they should be involved in that child's welfare. Onder. If the court therefore like, say, considering making any of these oldest and the presumption is there. Having said that, that presumption can be rebutted if the other person concerned can shoulder by the other pound being involved, that would actually cause a child harm. So this is very important when you, for example, dealing with applications for safe father who may be seeking contact and therefore child of dangerous spending time with other words having contact with the child. It's very important to emphasize that, of course, not only are they d requirements that Kourtney to consider in terms of the case Lord surrounding contact, but also Article eight of the European Convention rights is very important as this section 11 off the Children and Families Act, for example. Now when it comes to apply for Section eight orders such as chard arrangements specifying living with, for example, then bury mind Section 10 subsection 42 Children because this sets out the position surrounding whether or not leave or permission of the court is acquired before one makes the application. So if one comes under Section 10 subsection four Children, for example, and permission would not be required of the court within which to make the application day would be in touch. To make the application as of right doesn't mean don't but the order, of course, but mission would not be required. People who come under Section 10 subsection forward before example impairment or garden or special garden of a child on any person who's favour. There is already too Child arrangements order especially five living with as well, a step parents with a p o. Toole p. Our agreement is with the civil partners with a PR order or PR agreement. Certain people come under Section 10 subsection five. So, for example, if you're acting for a relative, say grandmother and she has had the child living with their for appeared about East one month before she makes the application In that situation, it would bring her under Section 10 subsection five for the purposes of them seeking a charred arrangements order specifying living with. There are certain other situations which come under Section 10 subsection five on If a person does not commander either 10 4 or 10 5 off, the Children acted, and they would require permission of the court within which to make the application, and to do that to form that's completed. For that, it's still the form C 100 on. One would need to complete the former tickle firm that they do require permission of the court to make the application. That application is made under Section 10 subsection nine of the Children Act, where the court need to take into account, amongst other factors, the nature of the proposed application for the Section eight order the applicants connection with a child any risk that application may have to the child's welfare. And if the child is, for example, being looked after about a local thought, he what their plans are for the child, so one would need to look at their plans to see whether they in fact, are supporting the order being made or otherwise. Now, as as you'll be aware when one is applying for chart arrangements, order specifying living with, then this is where the criteria, which according to consider, is set out within the welfare principle. So you've got section one subsection one of the Children out, of course, which is very clear as far as the welfare of a child being, of course, paramount consideration. You got the nordle, a principal section one, subsection two. The wealth weapons would want for checklist Wild on the section one subsection three of the Children act on guard in particular yourself. Section one, subsection five. So is it better for the child and not to make the orders he concealed off? Those factors are very important which come to play in this regard. Now, as I mentioned, there are various options to place Children with parents on Day One option. Of course, in private Children, all cases would be a child arrangements or to specify and living with. Sometimes it may find out parties will agree, and therefore there is no need for an order. And hence this is where Section one subsection five of the Children that comes into play the Courtney toe ask themselves, Is it better for the child and not to make an order? Amends? This wouldn't need to come into play. Now one of the other issues we're looking at here is if if we're in Cape seems than another method through which a child could replace with a parent, is where the local 14 may have the benefit of, say, an interim care order or a K order. If they were to place the child, would the payment in all circumstances? And it's very important to ensure that pay satisfied a k planning placement in case of you regulations, either the ones that England or dollars in Wales, of course, and therefore very important to ensure that those are appropriately satisfied. Now, as for shared child arranged disorders thes then it could be particularly useful where a child is going to be dividing their time between two or more parties. And these are quite useful because not only the person's if they didn't otherwise have so have parental responsibility by the making of the order. But also this really brings about more in the sense of equality, as far as ensuring that one of the parties does not regard themselves as being in a position to be undermined the other in any way. It's a shared order in that regard. Okay, Liston, start looking at the position with special garden ship And really look at how this varies and similar into child arrangements. Living with now Special gun supporters came to effect as a result of the adoption of Children like 2002 and these were inserted into sections 14 a to F off the Children Act of 18 90 and with a chart arrangements sleep with a special guard supporter. This, of course, is a very significant order in the sense that it would give her responsibility for all aspects of caring for the child. This important note that a child who is subject to a special gunship is not God does one who is looked after by the local authority. The prevent responsibility remains with side of parents, but it is limited in scope in that the special guard you know, special guardians we'll have parent responsibility, which enables them to exercise that to the exclusion of all other people, pour into responsibility, including the parents other than another special guardian. There are, however, limitations which I'm going to take you through shortly. One of the other aspects of Special Gunship is it does, of course, preserve the link between the child and the special Guardian. So that's Onda parents, of course, and therefore that's one of the Keith aspects that you need to be a way off with this. It doesn't take away in the same way that, say, adoption does the parent responsibility from birth family. In that regard and also the special gunship, Porter is accompanied by a range of access to various support services, which could include financial support, if appropriate in the circumstances. Now, insofar as the position with special guardianship, if one is to want to consider making such an application through a special gun, should perspective special ground must be at least 18 years over, there can be an individual can apply jointly. Would somebody parents of the child cannot become special guardians for the own Children's, So that's very important. Note and sexual. 14 Capital A of the Children access at a details as to who may apply, which can include, for example, local authority. Foster cares, for example, in those circumstances. Now, this is where it's very important to know that if somebody does wish to become a special guardian din, ordinarily they would be expected to give notice to the local authority. Normally in their area off the intention to apply for special gunship. There is exception to that. Under these, for example, for person has the permission of the court making up competing application for special gunship where there is an application for adoption or denies being made on. This is necessary, of course, to ensure that the proposed application for special gunship is not delayed in any way because of the competing adoption application. Generally, if you don't have that situation and generally they would be a requirement for the perspective special gone to give to give notice to the local thought in their area so as to enable the local authority to carry out Anesi assessment process on once there. Three months notice period has been dealt with then only then in most cases could be perspective special garden and make the application in those circumstances. Now, one of the other aspects which you need to bear in mind is that which relates to contact. So when the court is considering whether to make a special contract border, they are also required to consider at that point is whether he would be appropriate to Macon Macon Order specifying contact arrangements between the child and state of chance parents, so this may be less so. Where, say the maternal aunt is applying to become a special Guardian said the parents are somewhat concerned that beyond once and if you becomes a special guardian, may not maintain the link between the child and the parents in terms of contact her level, which is commenced but with the child's needs. And that's where she may be invited to court. At the point ordered. A special hardship order has been made. She may be invited to court to grant her they spent a child arrangements order specially finding a child spends time with or otherwise has contact with her. So this is very much where this comes into play. Uh, in that regard now, as I mentioned, prevent responsibility under Special Gunship is such that the special Guardian acquires parental responsibility to which they will be up to exercise to exclusion of all other persons would turn to responsibility under other than another's better guardian. There are some limitations to server there certain situations where they would not be in a position to be able to exercise PR exclusively. So, for example, at the perspective special garden, although they can agree on cause the child to be taken at the jurisdiction if they are going to a special guards support there is actually a maximum period of three months was if they wish to take the child beyond So yard Seidman Waas for peer beyond that and it would require permission from the other parents with parties would print responsibility and, if not, permission from the court. So you can see this is quite different to child arrangements. Water specifying Living with Where's you remember mentioned that maximum period there where one can cause are allowed a chart to leave the UK is less than a month words with special garden ship. It's three months, so that's quite a significant difference there. Also as a special guardian, there are other limitations. The person of special grounding cannot figures on change a child's surname or religious affiliation without the consent of other parties with PR or leave of the court. So there are some limitations there. Also, unless there special gone supporter has been granted was then with variation on discharge of disorder, and this is where it is possible for the special gun supporter to fact prevailed or discharged, but an application would need to be made for their safety applications being made by the child's parents or legal guardians. On also unexpected step into Esperanto responsibility, as well as anybody who had put into responsibility before the special gun support was made, Child also can apply depending upon their age and their understanding now in so far as the position with D notices concerned. As I mentioned once the local felt, he has received a requisite notice from the perspective Special guardian than they would need to carry out the assessment on Dad. Insofar as the assessment process is concerned, this is one were by Section 14. A after later Children Act provides that the local thought would need to investigate the circumstances. On in particular, there are these special gunship regulations of 2000 and five, which set out quite specifically what the assessment processes, insofar as that is concerned and in fact, the provision of quite clear in that the court is not permitted to make a special gun supporter unless it has received a report detailing the matters. Referred to in subsection eight will be special gunship regulations of 2005 and therefore very, very important to ensure that polls that report is made available. Now. Special gun supporters are not limited to care cases that is coming made in private Children or cases. Also, although typically you'll find in many cases thes Mabel be made within cam proceedings as maybe to find order at the end. Thea Applicants for Special Gunship could be any guarding for a child and individually or as a child of Angels Sword, especially finally with any person who appears within Section five. Off the Children may apply Foster parent, with whom the child has lived for at least 12 months, immediately preceding the application. Also, any other person who has sought the court's permission. So a za I mentioned earlier parents cannot become a special guardians for the wrong Children's are very important to bear that in mind now. There were so amendments, which came into effect in England last February. These were the special Gunship Amendment regulations of 2000 and 16 and these regulations are very important because they set out specifically what type of additional detail, which is required when one is carrying out a special gunship assessment. Uh, so in particular, the amendments amendment to Regulation four requires one to consider any harm that the child has suffered. What the risk of harm to a child pose by the chance parents, relatives or any other person the local authority considers relevant On also want is to ensure that they carry out in detail the child's coat needs or likely future needs. They also needs to be there for specifically an assessment of the nature of perspective, special guardians, current and past relationship on paved capacity. So this really requires a throw it enough assessment to be undertaking and all circumstances to ensure that there is no delay and no certainly difficulty and so far is ensuring that the assessment is being done appropriately. Now. One case which you may find helpful, is the grace of re Are Did I mentioned about the motives position, as I mentioned earlier Notice does need to be given to a local authority of off intention to apply for special gunship and if the person requires leave of the court first or permission of the court first and we are confirms that they would need to apply for permission obtained that first andan, of course, provided the requisite notice to local authority on, then wait normal for three months before they can make the applications again. Very important there. That in mind, the case of Rielle is quite use for this. Is the 2007 case to the mention, because this emphasized the fact that all those special gunship does comfort parent responsibility upon the special guardians. This is limited in that other mentioned there are the limitations such as, for example, changes surname, religion, taking a child out of jurisdiction. So very important to emphasize what you're advising special gardens about the limitations that I mentioned on finally then, that this is the special gunship regulations that I mentioned. These then set out the fact that the local thought Iwendi Arkan got the assessment will consider and take these into account to look to see what services may will be provided, which could include, for example, financial support and say services to enable contact for example, assistance and saying mediation or contact her entrance in that regard so you can see there are a lot of similarities and differences between chart arrangements, orders living within also special gunship, the prevent responsibility under special gunship is somewhat more elevated for the reasons we said. And also, parents cannot become special guardians for their own Children, unlike child arrangements, orders where they can apply for these. Okay, so I hope has been useful for you to really look at some of the similarities and differences between these types of orders. Gonna thank you very much indeed. I hope that's been useful. And I speak next time. Thank you. Bye for now.