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Special Guardianship Orders and Overseas Placements

Maria Wright, PhD Candidate at the University of Bristol, and solicitor, highlights some of the challenges associated with placing children under SGOs overseas and asks whether such placements warrant a distinct form of legal framework tailored to meet their specific needs.

 

 

Maria Wright, PhD Candidate at the University of Bristol, and solicitor, 


In an increasingly diverse society, the children who come to local authority attention as needing support or protection often have important connections overseas. Statistics are not available on the frequency and dispersion of care proceedings with an international element. However, in 2017 in England and Wales, 28.4 per cent of live-born babies had mothers who were born outside of the UK, the highest percentage on record 1.  Anecdotally at least, courts have referred to an increase in care cases involving children with European connections 2.  Such connections may often entail the presence of an extended family member overseas who can permanently care for a child, if a court concludes that they cannot return to the care of their parents.

Special guardianship was introduced to provide an alternative route to permanence for children for whom adoption was not appropriate 3. In practice, Special guardianship orders (SGOs) are increasingly used to place children with kinship carers 4.  This can include their placement with kinship carers who live overseas 5.

The use of SGOs has received recent attention, both through the courts, and in academic research, as a result of concerns about children moving to 'risky placements' with special guardians with whom they had little or no pre-existing relationship 6.  Studies by both Masson et al and Harwin et al identified that in a third of cases sampled, children were not living with their special guardians when a final SGO was made, meaning that the placement was 'untested' as at the final hearing 7.  In the case of Re P-S (Children) 8, the Court of Appeal considered the  propriety of guidance suggesting that an SGO should not be made until a child has lived with the carer in question for an appreciable period of time, prompting a review of the empirical evidence on special guardianship 9.  Interim guidance issued by the President of the Family Division in May 2019 emphasised the importance of good quality, in-depth assessments of special guardians which should not be constrained by the 26 week timeframe, where further time is required to assess the quality of the relationship between the child and the proposed carer/s 10

Cross-border cases encapsulate some of the challenges that SGOs can present in practice. A child who is the subject of proceedings in England and Wales is unlikely to have lived with their potential kinship carer overseas before, or if they have, not for some time. Any pre-existing relationship between a child and potential kinship carer may be further hindered by differences in language and culture which can become embedded for children born and brought up in the UK, or for those who have lived in interim foster placements which are not a cultural match. At a practical level, assessing the quality of this relationship, and the potential for it to grow and develop, is more difficult when the child and potential carer live in different countries.  If a decision is made to place a child overseas under an SGO, there are then additional questions as to how the child will be supported in that placement, how the placement will be monitored (if appropriate) and what will happen if the placement breaks down.

Accordingly, cross-border cases may be particularly difficult to fit within a domestic framework for assessment and placement for special guardianship. That said, children should not lose out on the opportunity to live with a carer under an SGO, and the benefits this order brings with it, simply because they have international connections.  This article seeks to highlight some of the challenges associated with placing children under SGOs overseas and poses the question as to whether international kinship placements warrant a distinct form of legal framework, which is tailored to meet these challenges.


a) Assessing potential special guardians overseas

When it comes to assessing overseas kinship carers there are two routes that can be taken – a local authority can commission a 'local assessment' by a professional based in the relevant country. This might be through the Central Authority if the other country is a Brussels IIa or 1996 Hague Convention Contracting State 11,  or through the international social service network by a referral to CFAB. It may occasionally (depending on the position taken by the overseas State in question) be commissioned through the EU Taking of Evidence Regulation or the 1970 Hague Evidence Convention 12. Local assessments can also be conducted through the direct instruction of a social worker based in the country in question.

Local assessments have a number of advantages. They permit the assessing professional to draw upon their experience of the country where the family member lives – including practical knowledge about services and procedures, but also about culture and custom. These insights can be vital in care proceedings, particularly where a court is anxious to understand how risks and conflicts are identified and managed in different cultures and countries. A local assessment may also inform a Special Guardianship Support plan, identifying available support services which can be vital particularly where a child has physical, psychological or emotional needs which will require ongoing treatment, supervision or intervention.

An alternative approach is for a local authority to conduct its own assessment. A local authority social worker may be sent overseas to assess the individual in question. This approach may have previously been relatively common, until case law emphasised that it is often not permissible for social workers to practice in other countries, and in some cases this may be illegal 13.  Another way forward is for the overseas carer to come to the UK for an assessment. There may be practical impediments to this. Prospective carers who do not have a right to enter and remain in the UK may require a visa to visit the UK for an assessment.  It is not always possible for overseas family members to obtain these visas, particularly if they have a poor immigration history themselves 14.

However, the difficulties for courts and local authorities in England and Wales in relying wholly on a local assessment can be distilled into two main points.

Firstly, a local assessment may not be the same as a domestic assessment, in terms of its method, the information gathered, the way information is analysed, its depth or its focus. In some countries, local assessments may provide all of the information and analysis required, but there is significant variability depending on the country in question. This may in part be explained by the diversity of child protection systems' orientations across the world 15.  But in particular, for the purposes of this article, it is unlikely that the assessment will cover the matters required by the Special Guardianship Regulations, unless the assessor is specifically instructed to gather this information and responds to this request 16

Secondly, and perhaps more importantly, reliance on a local assessment alone does not permit an analysis of the relationship and interaction between the child and the potential kinship carer. Assessing this relationship, and its potential, will require a creative approach, perhaps amalgamating a domestic and local assessment, particularly if such an assessment is required to comply with the Special Guardianship Regulations, and for it to be sufficient to enable a court to be confident that the placement will be in the child's best interests.


b) Testing and monitoring the placement – is it possible in cross-border cases?

The previous section touched upon the difficulty of assessing the relationship between a child and a potential special guardian in a cross-border case. This issue ties in to the potential for children to be placed with special guardians they have not lived with before.

The guidance given by Keehan J which was the subject of the appeal in Re P-S (Children) 17, said:

"a special guardianship order should not be made, absent compelling and cogent reasons, until the child has lived for an appreciable period with the prospective special guardians."

This guidance led the first instance judge to conclude the case with a care order, with a view to an SGO being made at a later stage once the placements of the children with their respective paternal grandparents had been tested. Although the Court of Appeal held that the judge had fallen into error in arriving at this decision, which was influenced by Keehan J's guidance, this section will consider the challenges of complying with this guidance in a cross-border case. 

One method, which the author has seen used in certain cases, is for a child to be placed with a prospective carer overseas on an interim basis, usually under an interim care order.  If everything seems to go well in the placement, proceedings in England and Wales can then conclude after the expiration of the time limit set. But this approach raises certain problems and challenges:

a) An interim placement with a potential special guardian will require some degree of monitoring and assessment so that the court can be informed as to how the placement is progressing, and whether it is viable on a long-term basis. In a cross-border case this may require effective cross-border co-operation with overseas authorities to enable visits to the child in their placement, unannounced if appropriate. But there is an additional consideration; if the child is looked after and overseas, the local authority will need to arrange statutory visits to the child in accordance with the Care Planning, Placement and Case Review (England) Regulations 2010. This may raise issues about the legality of social workers practising overseas, as well as being a significant issue from a resources point of view. It also raises the question as to whether placements can be appropriately and effectively supervised across national borders.

b) What happens if the interim placement is not viable and the court requires the child to return to England? From a child's point of view, this may be quite a destabilising event. There is also a legal complication. If the prospective special guardian refuses to return the child to England, the court may make an order for the child's return which may have to be enforced in the relevant country. There may then be challenges to enforcement, and the potential for protracted litigation. Enforcing an order for the child's return in a country which is not a Brussels IIa Member State or 1996 Hague Convention Contracting State is likely to be even more difficult and uncertain 18.  


c) Supporting special guardians overseas

Overseas placements do not appear to have been thought about when the government devised the special guardianship scheme, so it is not always clear how the support services which accompany SGOs play out in cross-border cases.

Children Act 1989 s 14F envisages special guardianship support services being provided by local authorities for children living in their area. But the Special Guardianship Regulations confirm that these support services must be made available to children who were previously looked after by the local authority in question immediately before the making of the SGO, even where children live outside of the local authority's area 19.  This support will cease three years after the making of a SGO (except insofar as it relates to financial support promised before the final SGO was made). It would therefore appear that Local Authorities are required to provide special guardianship support services to children even if they live overseas after the SGO is made, provided that they were previously looked after children.

Devising a special guardianship support plan for children who will live overseas will inevitably be a more complex exercise than it would for a child living in the UK. It may be greatly assisted by cross-border co-operation with local professionals or counterparts. Many local authority policies on family and friends care state that an assessment of financial support will entail a 'comparison between the cost of a "basket" of everyday items such as groceries and clothing, housing costs and utility costs in the UK and the cost of the same or comparable items in the country of residence of the child' 20.  Special Guardianship Support plans may also incorporate a fund to enable the carer to obtain the recognition of the SGO in their home country, either through the provisions of Brussels IIa or the 1996 Hague Convention, by way of a mirror order.

A challenge that may arise in the provision of support for overseas special guardianship relates to the special guardians' awareness of their rights, and participation in proceedings. Are prospective special guardians overseas told that they may wish to obtain legal advice, may wish to make an application for party status and make representations in relation to any plan, or provision for contact?

Following on from this, are overseas special guardians able to access support services set out in a special guardianship support plan? Wade et al touch upon the difficulties for former looked after children living under SGOs overseas to access the support they are entitled to under the special guardianship regulations, unless careful arrangements were made in advance for the delivery of these services 21

Generally, monitoring special guardianship placements overseas can be achieved through effective cross-border co-operation, but clarity is needed as to which agency or authority is responsible for carrying this out. In some countries, it is possible to arrange post-placement visits by an overseas statutory agency or international social service partner, but the availability of this service will vary.  Overseas placements with special guardians require that particular attention and planning be given to post-placement arrangements and, importantly, contingency planning for the breakdown of the overseas placement, especially in circumstances where a child has no other alternative family members in the country in question who might be able to care for her. Harwin et al found a relatively low rate of special guardianship orders returning to court by way of proceedings for a care or supervision order (5 per cent within the 5 years following the making of an SGO) 22.  Whilst this figure is low, it raises the question of how child protection concerns in an overseas SGO placement would be dealt with, and the consequences of a placement breakdown for a child who has moved overseas.


d) Recognising and enforcing special guardianship orders overseas

Special guardians have an unusual legal status in relation to the child and her parents. They have a particular bundle of rights and responsibilities in relation to a child which are articulated in CA 89 s 14C. In particular, they have an elevated parental responsibility, which can be exercised over and above other holders of parental responsibility (except other special guardians). When consideration is given as to how an SGO will be recognised overseas, it is important to remember that this particular legal status may not be familiar to overseas courts and professionals. If a child is moving to a 1996 Hague Convention Contracting State (outside of the EU), Article 24 of the 1996 Hague Convention may assist with this. It enables a ruling to be obtained from the overseas competent authority on the recognition of the SGO before the child moves overseas ('advance recognition'), which may assist with achieving the recognition and enforcement of an SGO in the country in question, before it is necessary to enforce the order. In other cases, expert evidence may assist in clarifying whether an SGO would be recognised and enforced in the country in question, and any provisions which would need to be included in a final order to assist with this process.


Conclusion

Many of the current issues of concern in relation to special guardianship arise frequently in cross-border cases. This article has demonstrated the difficulties of fitting cross-border kinship placements into the domestic special guardianship regime. But it would be unjust if children with international connections missed out on the benefits of special guardianship due to legal complications associated with their placements. Cross-border special guardianship orders therefore warrant, this article suggests, particular attention so as to ensure that these placements are properly assessed, legally secure, and that prospective carers and children are able to benefit from special guardianship. It may be that cross-border kinship placements require a distinct form of legal ordering, which is tailored to meet some of the challenges identified in this article, so that children with international connections do not lose out as a result of the practical challenges these cases can present.


Maria Wright is a solicitor and PhD Candidate at the University of Bristol conducting a study into care proceedings with an international element. With special thanks to the staff at Children and Families Across Borders (CFAB) for sharing their extensive knowledge and experience of cross-border child protection cases.


1 Office For National Statistics,  'Births By Parents' Country Of Birth, England And Wales'' (ONS, 2019) https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/livebirths/bulletins/parentscountryofbirthenglandandwales/2017 accessed 4 July 2019.
2 Re E (A Child) [2014] EWHC 6 (Fam)
3 Department For Health, Adoption: A New Approach (White Paper Cm 5017, 2005)
4 Judith Masson and others, 'Reforming care proceedings 1: Court Outcomes' (2018) University of East Anglia;  Judith Harwin and others, 'The Contribution of Supervision Orders and Special Guardianship to Children's Lives and Family Justice' (2019) Centre for Child & Family Justice Research.
5 Maria Wright, ''Working' The International Child Protection Case: A Snapshot Of Local Authorities' Experiences Within An Evolving Legal Context' (2018) 41 Journal of Social Welfare and Family Law; CFAB 'Cross Border Child Safeguarding; Challenges, Effective Social Work Practice and Outcomes for Children' (2018).
6 This term was used by the Department for Education in their 2005 review into Special Guardianship to refer to placements where an SGO was made alongside a Supervision Order, a practice which the review describes as 'particularly concerning where the child is not already living with the guardian, or where there is no or little pre-existing relationship' (Deparment for Educaiton, Special Guardianship Review: Report on Findings (DFE-00309-2015, 2015, 5-6))
7 Judith Masson and others, 'Reforming care proceedings 1: Court Outcomes' (2018) University of East Anglia, 3; Judith Harwin and others, 'The Contribution of Supervision Ordrs and Special Guardianship to Children's Lives and Family Justice' (2019) Centre for Child & Family Justice Research 5.6.3.
8 [2018] EWCA Civ 1407
9 'New Review Commissioned To Address Pressing Questions About Special Guardianship | Nuffield Foundation' (Nuffieldfoundation.org, 2019) https://www.nuffieldfoundation.org/news/new-review-commissioned-address-pressing-questions-about-special-guardianship accessed 4 July 2019.
10 Family Justice Council, 'Interim Guidance on Special Guardianship' (24 May 2019)
11 Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000; Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children
12 Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters; Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. See Leicester City Council v S [2014] EWHC 1575 (Fam) [12]
13 Leicester City Council v S [2014] EWHC 1575 (Fam)
14 Home Office Visit Guidance Version 8.0 (April 2019) 13
15 Neil Gilbert, Nigel Parton and Marit Skivenes (eds), Child Protection Systems: International Trends and Orientations (Oxford University Press 2011).
16 See Special Guardianship Regulations 2005 Sch 1 as amended by the Special Guardianship (Amendment) Regulations 2016
17 [2018] EWCA Civ 1407
18  Depending on the circumstance, and in particular the conditions for the interim placement, the local authority may be able to bring an application for the summary return of the child under the 1980 Hague Convention on the Civil Aspects of Child Abduction on the basis that the child has been wrongfully retained overseas (provided that the interim placement was in a Contracting State).
19  Special Guardianship Regulations 2005 Reg 5;
20  See, for example, London Borough of Hackney, 'Connected Persons (Family and Friends) Care Policy' June 2016, 6.5
21 Jim Wade and others, Investigating Special Guardianship: Experiences, Challenges and Outcomes (Department for Education 2014) 57.
22 Judith Harwin and others, 'The Contribution of Supervision Ordrs and Special Guardianship to Children's Lives and Family Justice' (2019) Centre for Child & Family Justice Research, 145.