Section 10 of the Children Act determines who may apply for a Section 8 order. Sections 10(4) and (5) determine the categories of person who may apply as of right.
Parents
You may apply for any Section 8 order if:
· You are the child’s parent or guardian;
· You already have a Residence Order in respect of the child.
You may apply for an order for residence or contact if:
· You are a party to the marriage in relation to which the child is a child of the family (this covers you if you are the victim of paternity fraud);
· The child has lived with you for at least three years;
· You have the consent of everyone with Parental Responsibility for the child;
· You have the consent of a local authority where the child is in the care of that authority;
If you cannot apply for an order as of right you may apply with ‘leave’, that is, with the permission of the court, and Section 10(8) sets out what factors the court should consider in such an application. These applications include those made by the child and 10(8) provides that the court must be satisfied the child has sufficient understanding to make the application. Usually the initial judgement of the child’s understanding will be made by his solicitor, if he has one, but the discretion remains with the court.
If you are not a party but have PR for the child you can ask to be joined as a party under Family Procedure Rule 12.3(2).
Grandparents
As a grandparent you can apply for ‘leave’ (permission) from the court to make a Section 8 application if, for example, your own son or daughter is preventing you from seeing your grandchildren; normally your contact with your grandchildren would be expected to come out of the parent’s contact. If you are the grandparent or sibling of a child you must make an application under part 18 of the Family Procedure Rules 2010.
When courts allow grandparents contact they usually order that their contact and the parent’s contact run concurrently; obviously if the parent is getting minimal contact that will affect the grandparent, so it is worthwhile applying for separate contact, bearing in mind that the court may suspect you of trying to win extra contact for your son or daughter through the back door. If you do decide to pursue an application you will have to accept that it will be an unpleasant, prolonged and stressful experience with the usual pattern of false allegations and delay.
Very often the best thing you can do is to support your son or daughter’s application for residence or contact and give them all the emotional support and love that you can at what is a terribly traumatic time for all of your family. If you can, also provide practical and financial support.
The application for leave is made on Form C2.
Under Section 10(9) of the Children Act the court must consider:
· the nature of your application;
· your connection with the child;
· any risk that the application may disrupt the child’s life to the extent that harm is caused, and;
· where the child is in local authority care, the authority’s plans for the child’s future and the wishes and feelings of the parents.
To support your application you will need to think about these points and prepare answers to them.
If court proceedings are already on-going in respect of the child you can request, at Question 6, to be made a party to them.
If there are no on-going proceedings and you are granted leave to make an application you must then complete Form C100. At Question 3 you must give details of both parents, and at Question 7 detail whether you want an order for contact or for residence.
At some stage in the process you may be interviewed by a CAFCASS case worker. You will need to present your family as close-knit and normal, and your child as a loving and committed parent. Emphasise the close bonds between yourself and your children and your involvement in the lives of your grandchildren.
Siblings
Sometimes a father is being denied contact with a younger child but has older children who have chosen to live with him. If you are a child in this situation, unable to see your younger brother or sister, you have two options. You can make your own application for contact, or you can apply to the court to be joined as a party to your father’s application.
Your advantage is that as a child you will be eligible for legal aid and you can instruct your own solicitor. Use Mabon v Mabon [2005] EWCA Civ 634 as a precedent.
