Often grandparents are closely involved in their grandchildren’s lives and upbringing, and as a result they are often the first port of call when the parents are having difficulties or are struggling to care for the children themselves.
Legal routes available
The term ‘custody’ no longer exists in relation to Orders for children to live with a specific person. Under section 8 of the Children Act 1989, a type of Child of Arrangement Order called a ‘live with’ order can be applied for which determines, as the name suggests, the individual(s) with whom a child should live.
Alternatively, Special Guardianship Orders can be obtained under section 14A(1) of the Children Act 1989 in certain circumstances and were introduced to bridge the gap between Child Arrangement Orders and adoption as they provide a stable and permanent home to a child without legally severing the ties to their birth parents. Sometimes this makes it a more suitable approach.
If grandparents wish to apply to the Court for orders in relation to their grandchildren, it is compulsory that they first attend a Mediation Information and Assessment Meeting (MIAM) with a qualified family mediator, to see if matters can be resolved using alternative dispute resolution, avoiding the need for Court proceedings. Where the parties are unable to reach an agreement, the mediator will issue an FM1 form which must be sent to the Court with applications. Grandparents will be exempt from attending a MIAM if emergency proceedings have been issued, or the Local Authority is issuing care or supervision proceedings in relation to the children.
Do I have an automatic right to apply?
In most circumstances, grandparents do not have an automatic right to apply to Court for orders concerning their grandchild, and it is likely that the permission of the Court will need to be sought.
However, there are exceptions to this rule, and in the following circumstances, grandparents do not need to apply for permission of the Court first:
- Where the grandparent is already named in a Child Arrangements Order as the person with whom the child is to live.
- Where the child has lived with the grandparent for at least 3 years, not necessarily continuously, but not more than 5 years previously. Residence with the grandparent must not have ended within three months of the application.
- Where you are a relative and the child has lived with you for at least 12 months immediately prior to your application.
- Where there is a Child Arrangements Order already in force and the grandparent has the permission of each person who is named in the order as a person with whom the child should live.
- The grandparent has the permission of those who have Parental Responsibility for the child (if any).
- The grandparent has Parental Responsibility, for example, because they are named in a Child Arrangements Order as a person with whom the child is to spend time, but they are not named as the person with whom the child should live.
If you do not fall into one of the above categories, you would have to make an application to the court for permission to apply.
All birth mothers automatically have Parental Responsibility for their children (unless the children have been adopted). Having Parental Responsibility gives someone the ability to make decisions in relation to the childs schooling, medical treatment etc. Parents who are married at the time of the birth, or subsequently marry, will both acquire Parental Responsibility, as do those who are named on a child’s birth certificate since 6 April 2009. Grandparents cannot make stand-alone applications for Parental Responsibility. In the event the Court makes a ‘live with’ Child Arrangements Order or a Special Guardianship Order in favour of a grandparent, they will often make a Parental Responsibility Order at the same time, without the need for a separate application.
Special Guardianship vs ‘live with’ Order
A Special Guardianship Order is more secure than a ‘live with’ Child Arrangements Order because lasts until the child is 18, and a parent will need the permission of the Court to apply to have the Special Guardianship Order discharged. A Child Arrangements Order, on the other hand, will come to an end when the child reaches 16.
A Special Guardianship Order does not bring the legal relationship between the parent and their child to an end, and Parental Responsibility will not be removed from the parents. Special Guardianship Orders give Special Guardians an enhanced form of Parental Responsibility which can be exercised to the exclusion of others, save for specific exceptions. For example, Special Guardian’s cannot act independently of parents with Parental Responsibility in matters where their permission is required by law, for example, sterilisation or circumcision of the child, adoption proceedings, change of the child’s name or removing the child from the UK for more than 3 months.
Permission to apply
If an application to the Court for permission to apply for a Child Arrangements Order or Special Guardianship Order is made, notice must be served on anyone who has Parental Responsibility for the child, which in certain circumstances can include the Local Authority.
Where there are serious concerns about the parents’ care of the child, or there is ongoing care, emergency protection or supervision proceedings, the Local Authority will often carry out an early Viability Assessment of grandparents, to assist in their decisions about who should care for the child. The Court will place significant weight on such assessments. Grandparents can apply for the leave of the Court to make an application, and to be joined in any ongoing proceedings, in order for the Court to consider their application for Special Guardianship.
For the Court to grant permission to a non-parent to apply for a ‘live with’ Child Arrangements Order or Special Guardianship Order, there must be compelling reasons to depart from the presumption that the child will be better cared for by a biological parent. The Court takes into account the welfare of the child, but at this stage it is not their paramount concern. The Court must also consider:
- The nature of the application being made.
- The grandparent’s connection with the child.
- Any risk that the application will disrupt the child’s life to such an extent as to cause the child harm.
- Where the child is looked after by the Local Authority, what plans are in place for the child, and the parents’ wishes and feelings.
Once permission to apply is granted
If the Local Authority is not already involved with the children, once you have the permission of the Court to make an application for a Special Guardianship Order, you must serve the Local Authority with notice of your intention to apply, three months in advance of issuing it at Court. This notice triggers the Local Authority to prepare a detailed report, without which a Special Guardianship Order cannot be made.
The Report will deal with background information about the child, family and prospective Special Guardians, the child’s wishes and feelings, their cultural and religious upbringing, and arrangements for contact with relatives and other relevant people. The report must take account of any harm the child has suffered, or the risk of harm posed by the parents in future. The report also considers the implications for the child, alongside the child’s current and historic relationship with the proposed Special Guardian, and will assess the merits of making an Order. The report will also need to comment on the parenting capacity of the proposed Special Guardian and how the proposed order might meet the child’s long-term needs. The report will provide the Court with recommendations.
The Local Authority must also provide support services, such as respite care, counselling, and financial support for Special Guardians, and must make an assessment of what is needed and what can be provided. These assessments can be challenged, and so it is important for potential Special Guardians to obtain legal advice if they are unsure whether the support offered to them by the Local Authority will meet their long-term needs. In some circumstances Local Authorities can offer alternatives to Special Guardianship Orders, such as kinship fostering arrangements.
If you would like further advice or information concerning grandparents’ rights our specialist Family Team would be pleased to hear from you and can be contacted on 0800 84 94 101 or email email@example.com.