The Family Justice Council has published interim guidance on special guardianship, with the primary purpose of addressing cases where an extension to the statutory 26-week time limit is sought in order to assess potential special guardians, more fully, within public law proceedings.
The move is in response to some of the issues identified by Lord Justice Munby, then President of the Family Division, in Re P-S (Children)  EWCA Civ 1407.
The interim guidance, which can be viewed here, has been approved by the current Family President, Sir Andrew McFarlane. More comprehensive guidance on public law is expected later in the year but the Family Justice Council felt that there was a need to provide interim guidance on this issue "to assist practitioners, now, and to help start the process of change".
The interim guidance states, amongst other things, that:
- As a general proposition, alternative potential carers "should be identified at an early stage and,where possible pre-proceedings, by adherence to good practice including convening a Family Group Conference at an early stage". Assessments should be commenced promptly and be evidence based, balanced and child-centred. In the event that a full assessment is undertaken it will usually require a 3-month timescale. The publication “Timetabling and timescales for full family and friends assessments” [attached to the interim guidance] and the Family Rights Group Assessment Template (Annex C): are "a model of good practice and in the absence of any exceptional features, the process and criteria identified should be standard to any special guardianship assessment".
- Where proceedings have commenced, all parties (including the Guardian) should file and serve position statements in advance of the first Case Management Hearing to include the details of proposed carers for assessment by the local authority. The Guardian’s Initial Analysis/position statement should explicitly address the identification of carers and their contact details. These should not be governed by the parents’ approval or disapproval but must be focused on the child’s interests.
- If the viability assessment is negative, the local authority must notify the subject of the assessment of the procedure to challenge the assessment including the procedure for any application to the court either seeking leave pursuant to section 10(9) of the Children Act 1989 or to be joined as a party. Any challenge must be pursued promptly within a short timescale.
- It is recognised, however, that there are cases where possible carers are identified late in the proceedings or for other reasons further time is required to assess the relationship between the child/ren and the carer(s) fully.
- A proposal for assessment of a late entrant to the proceedings "must be realistic and not merely a trawl though all possible options, however unlikely". If the application has a sound basis, an extension beyond 26 weeks should be permitted if it is, "necessary to enable the court to resolve the proceedings justly" [section 32(5) Children Act 1989] and as such will be readily justified as required by section 32(7) of the Act.
- Where the proposed carers appear to be viable, the assessment of carers living in another country will also justify an extension of 26 weeks.
- Where a viability assessment is positive, the parties and the court should, when making directions for a full SGO assessment, consider, and if necessary make orders relating to, the time the children will spend with the proposed carers. An evidence-based assessment which does not include any assessment of the proposed carers’ relationship with the child is likely to be regarded as incomplete.
The interim guidance says that if the court approves an extension, consideration will need to be given to the legal framework. “It may not be possible for the child to be placed pursuant to an interim care order under the current regime imposed by Regulation 24 of The Care Planning, Placement and Case Review (England) Regulations 2010. In these circumstances, an alternative approach would be placement pursuant to section 8 of the Act: a Child Arrangements Order and an interim supervision order to provide support for the placement, particularly during any transition period.”