Special Guardianship Orders for Children of Italian Parents in Local Authority care in the UK

The care of minors, children under the age of majority, is considered to be of paramount importance should their parents be unable to care for them for any reason.  Local Authorities in the UK routinely take children into their care if such a situation arises, including children of EU citizens, for such children the Local Authority has the additional responsibility of ensuring that the child’s status to enable them to remain in the UK is legally established. It has been some time since the UK recognised any child born in the UK, regardless of their parents’ nationality, as British citizens.

Local Authorities have a duty to step in and protect children in the event of their parents being unable to do so themselves; they also have a duty to find the best possible alternative to being cared for by parents. The same level of due diligence applies to the placement of children of foreign nationals with an overseas Special Guardian as to those in the UK. Increasing the local authorities will seek out a guardian that is part of the family, particularly if the child has a heritage from another country, to maintain the family and cultural connection.  Families today are far more likely to have a cosmopolitan aspect than ever before and the free movement through the EU has significantly enhanced the number of children in the UK that are born to non-UK parents. The Office National Statistics reports that 28.2% of all babies born in the UK are born to non-UK citizens.

Giambrone has a robust cross-border multi-lingual family law team that frequently deals with the challenging matters often involving the complete breakdown of the family unit which includes a cross-border aspect. Giambrone’s family lawyers are increasingly asked to advise on the complex question of Special Guardianship, our English speaking lawyers are based in both London and Italy.  Our lawyers are approached by the Education and Children Services across the UK to provide a legal opinion on matters related to the children of Italian citizens who have come under their care to ensure that all the steps they take are legally sound and compliant, usually a close relative is selected to be appointed the child’s Special Guardian. 

Special Guardianship orders are an innovative solution amongst, adoption, fostering and entering the State care system.  It is a permanent solution that cannot be overturned. The option usually aims to provide a link to the child’s family which allows the potential for reconciliation with the birth family at a later date if the situation leading to the child requiring an alternative option changes and the child can be returned to their parents’ care.  A Special Guardianship Order involves appointing one or more individuals as a child’s special guardian until such time as the child reaches the age of majority or the Order is revoked by the court.  Such an order provides a legally sound placement and confers parental responsibility to the Special Guardian which can be implemented to the exclusion of any other person, excepting another Special Guardian.  Whilst the child’s parents do not lose parental responsibility, in fact they retain it but cannot exercise it, nor can they request that the Order is revoked, unless at the initial hearing the court gives them permission to apply for the order to be revoked at some point in the future, for example, if say parental ill health is the reason for being unable to care for the child but a recovery is likely to be possible in the future.  A Special Guardian has responsibility for the day to day decisions in respect of the child, such as matters relating to education but they cannot make the life-altering decisions like changing a child’s surname or overriding a parent’s refusal to consent to an adoption.  In the day to day decision making, the Special Guardian’s opinion takes precedence, should a conflict arise. 

There is a parallel between the English law and Italian law in this regard as there is a similar procedure for children who are in the regrettable position of not having a parent in a position to look after them. The Italian procedure is called “affido” or “affidamento familiare”, meaning child custody. An affido can be applied to a single individual or to more than one.  An affido can be terminated only with an Order issued by the Authority under which it was granted and will only be considered if it is deemed to be in the child’s best interests, due to the child’s family difficulties coming to an end or that the continuance of the Order would be detrimental to the child.  There is a strong bias towards the family in respect of the application of an affido and the child’s relatives extending to the fourth degree can be considered.  There are some variations between the English Special Guardianship and the Italian Affido but the two procedures are largely the same.   

The lawyers in Giambrone’s family team are sensitive to the fact that a decision to uproot a child from the country of their birth to be brought up in what will be to them a foreign country, regardless of their family connection, is never taken lightly but the use of Special Guardianship Orders may provide the best way to keep the child within the family so that if circumstances change for the better the door remains open for a relationship with their birth family at a later date.  Giambrone’s cross-border family law team enjoy a reputation for the ability to make perceptive assessments which, together with comprehensive legal expertise, provide innovative solutions and the best option for the child whose case they are advising on.

For more information about Special Guardianship Orders as applied in Europe or any other cross-border family matter please click here