A guide to how grandparents can remain involved in their grandchildren's lives following family separation.
The role of grandparents, who are also victims of family break-ups, is frequently overlooked. Many people believe that grandparents should be given a legal presumption to contact with their grandchildren in acknowledgement of the importance of grandparents at the heart of the family and of the benefits they can provide to parents coping with a growing family. Grandparents currently provide childcare worth more than £1 billion a year.
The most common reason why a grandparent loses contact with a child is that one of the parents has lost contact or is being excluded. If that parent's contact can be restored then the grandparent's contact will, in most cases, automatically follow.
When a grandchild expresses a wish not to see their grandparent anymore it can be terribly hurtful and can make some grandparents, who perhaps don’t understand what is going on, very angry. Don’t be angry; do not reject your grandchildren or disown them; to become angry with them is to be drawn into the trap which has been set for you.
The first step for a grandparent who fears losing contact should be to approach the child’s mother or father and explain that, no matter what the problems are between the parents, you as a grandparent do not intend to take sides and that you only wish to maintain contact with your grandchildren.
If that is not successful, you can try mediation. For this to take place, both sides have to agree to mediate. It is not a compulsory process and may not be right for all.
The final resort is an application to the Court. Here you are at a disadvantage compared with parents since as a grandparent you have no formal legal right to contact with your grandchildren; normally your contact with your grandchild would be expected to come out of the parent’s contact.
It is first necessary for you to apply for ‘leave’ (permission) from the Court to make a Section 8 application. This is the first hurdle. The parent may object, in which case the Court must be persuaded, usually by way of a hearing, that the grandparent had a meaningful and ongoing relationship with the child and that it is in the child's best interests for this relationship to continue.
Even 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 child arrangements 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 also request, at Question 6, to be made a party to them.
You must attach to your application a completed Form C100. At Question 3 you must give details of both parents, and at Question 7 detail the Child Arrangements Order you want the Court to make.
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 child and your involvement in the life of your grandchild.
To support your application for leave you can use the case Re J (A Child) (Leave to issue application for Residence Order) [2002] EWCA Civ 1346 as a precedent. The mother was a psychiatric in-patient and the local authority wanted to place her 18-month-old daughter for adoption. An older child had largely been raised by the paternal grandparents and to a lesser extent by the maternal grandmother and was about to go to university.
The LA had rejected the grandmother as a possible carer due to her volatile relationship with her daughter and her age, 59. It said the application did not merit judicial consideration. Nevertheless the grandmother applied to be joined as a party and for leave to apply for residence; the mother supported the application as had the father prior to the LA’s objection.
The lower court had not adequately considered the Section 10(9) checklist; the question for the Court was ‘has the applicant satisfied the Court that he or she has a good arguable case for the criteria that Parliament applied in section 10(9)?’ The Court allowed the application, accorded the grandmother party status and allowed her to make an application for residence.
You can also use Re H (Children) [2003] EWCA Civ 369 in which a grandmother was given leave to apply for residence and be a party to care proceedings because she was the child’s only relative able to offer care.
There are situations in which a grandparent will wish to apply to be the main carer for a child. Social services – and therefore CAFCASS – will habitually oppose to this, believing that a grandparent given residence will use it to enable an excluded child to have contact. The courts, however, are required to favour grandparents – and other relatives – over strangers.
There are two precedents which you can use for residence. The first is Re C (A Child) [2009] EWCA Civ 72 in which a CAFCASS guardian appealed against a decision to place a five-year-old child with his 70-year-old paternal grandmother rather than send him for adoption. The appeal was dismissed because,
· The law was biased in favour of placements with the child’s wider family;
· The grandmother had demonstrated her commitment to the child and had a good relationship with him; and
· The grandmother wanted to promote continuing contact between the child and his half-sister with whom he had spent his life.
The second precedent was the first case to be reported from the new Supreme Court, Re B (A Child) [2009] UKSC 5. This case overturned a decision from the Court of Appeal, Re B (A Child) [2009] EWCA Civ 545, which itself had reversed a decision of the Family Proceedings Court in the grandmother’s favour. The case confirmed residence of a four-year-old boy with his grandmother rather than transfer of residence to his father.
The grandmother had been the primary carer for most of the boy’s life, while the father had served time for assault. The FPC ruling had not been ‘plainly wrong’ and the Court of Appeal had erred in overturning it; it had also misinterpreted Re G [2006] UKHL 43: biological parenthood was a contributor to a child’s welfare but there was no presumption in its favour and the child’s welfare remained the paramount consideration. The boy’s current stability depended on the bond with his grandmother.
Many grandparents are their grandchildren’s primary carers but haven’t formalised the relationship and find that they have difficulties with schools and medical authorities, etc. Although you do not have Parental Responsibility (PR) we advise you to apply for a Child Arrangements Order regulating with whom the child is to live which will then confer PR automatically and place you in a much stronger position with regard to schools and doctors. If the Court refuses, using the no-order principle of the Children Act, refer to B v B (A Minor) (Residence Order) [1992] 2 FLR 327 which showed such an order to be in the child’s best interests.
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