The disorder and turmoil that the coronavirus pandemic has created across the globe has visited nearly every aspect of normal life and has an exceptional impact on family life. In a not inconsiderable number of cases families have been tragically fractured by loss to the coronavirus or the effects of exceptional stress.  A number of parents are in the position of being unable to care for the children of the family. State Authorities in all countries have a duty of care towards minors whose families cannot undertake their care, regardless of the reasons.  The situation can seem more complicated when the parents are nationals of different countries or they are living in a foreign country. In such a circumstance the Authorities have an obligation to investigate all avenues to seek out the best solution available for the child’s safe custody and wellbeing. 

A Special Guardianship orders in England & Wales offers a resourceful solution which goes some way between adoption, a permanent solution that cannot be overturned; and the State care system and crucially keeps the link to the child’s family allowing the potential for reconciliation with the child’s birth family at a later date if situation changes and improves.  

A Special Guardianship Order involves appointing one or more individuals as a child’s Special Guardian until the child reaches the age of majority or the Order is revoked by the court, the individual (s) are often chosen from amongst the child’s wider family.  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, with the exception of another Special Guardian. The ideal situation is to select a Special Guardian that is related to the child and where possible a person that the child is very familiar with.  A Special Guardianship Order allows the child’s parents to retain parental responsibility but they cannot exercise it, nor can they request that the Order is revoked, unless the court initially gives permission to do so.  The 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. 

Alessandro Gravante, senior partner in Giambrone and head of the Italian division, points out that there is a parallel in Italian law where 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 if it is considered to be in the child’s best interests.  Alessandro further points out “there are variations between the English Special Guardianship and the Italian Affido; for example, with regard to the Affido, if is there is evidence of abuse within the family, parental responsibility can be removed. Also, the placement of a child with the extended family to the fourth degree does not convey parental responsibility to them without the intervention of the Public Authority”

Alessandro Gravante has frequently been 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. Alessandro commented “there can be many reasons a parent is unable to care for their child or children, long term ill health, drug abuse or even death,” he further commented “as the world becomes more cosmopolitan than ever before, the free movement throughout the EU has resulted in a significant number of families living away from their country of origin making the placement of children with an extended part of their family all the more important.”

Giambrone has a robust cross-border family law team that frequently deals with the challenging matters involving the complete breakdown of the family unit.  The family team advises on the specialist legal questions that are arising more frequently than ever.

The decision to uproot a child from the country of their birth to be brought up in a foreign country is never taken lightly but the use of Special Guardianship Orders and Affido provides a way to keep the child within the family in the hope of a brighter future and also leaves the door open for a relationship with their birth family at a later date.