About one million grandparents are being denied contact to their grandchildren. It is a little surprising that the coalition government in 2010 pledged to give grandparents increased rights. Sadly however this has not happened. Access to grandchildren was the previous term used.
What are grandparents’ rights?
Sadly grandparents do not have any legal rights. If a grandparent wants to have contact with a grandchild and one or both parents refuse to grant it, after exhausting all other avenues including mediation and correspondence, they will need to apply to the Court for help. Due to recent changes, the application they will need to make is to apply for a Child Arrangements Order (formerly called a contact order, and before that, it was called an access order),
To convince the Court that they should have contact however, grandparents need to satisfy an additional hurdle to parents. They have to apply for permission to bring an application for a Child Arrangements Order. They have to show the Court that they have an arguable case. The Court take into account all sorts of factors when making the decision as to whether they have an arguable case including the nature of the application for contact, the grandparents connection with their grandchild, any risk there might be of the application disrupting the child’s life to the extent that the child might be harmed by it, if a child is being looked after by a Local Authority, the Authority’s plans for the future and the wishes and feelings of the child’s parents.
This additional hurdle does not have to be dealt with straight away, and it often depends what the parents are saying as to when this permission is discussed.
Frequently Asked Questions
Once the Court has given permission for the grandparent to bring an application, the Court then has to determine whether or not the application for contact is in the best interest of the child. In the Children and Families Act 2014, the term contact is now been replaced with a “child arrangements order”. This means that the court can determine the arrangements for where a child should live and who they should have contact with.
Parents do not have to apply for permission to bring an application, they have it automatically. Under David Cameron’s “Big Plans” back in 2010, there was talk of the requirement for applying for permission from the Court to be done away with for Grandparents, but sadly, the position currently remains the same.
Before an application can be made to court, you have to have attended a MIAM (Mediation Information and Assessment Meeting). Check the “What is Mediation?” question below.
The Court will accept applications from you directly; you do not need to have a Solicitor instructed, however you may feel that you would like a Solicitor to represent you as there will be at least one, and in most cases more than one, Court hearing.
The application is made on a form C100 for contact and on a Form C2 to apply for permission to bring the application for a Child Arrangement Order. That application is then lodged with the local Family Court. It must be made to the Court closest to where the grandchild/grandchildren live. A Court fee is payable unless the grandparent qualifies for an exemption of fees. Currently, the Court fee is £215.00 to make such an application.
It is very difficult to predict each individual case. The procedure is as follows:-
The application is made to the Court (grandparents must have made a referral to mediation first). A copy of the application is sent to CAFCASS who do some initial background checks both with the police and Social Services. In addition, they may speak to the various people involved in the case including the grandparents and parents. At this stage, CAFCASS would not speak to the grandchildren.
The Court sends back the papers to the grandparents to serve upon the opponent (usually the parents).
The Court give a date (usually one month to six weeks after the date of issuing the application)
The Court hearing is for a “directions appointment”. A lot of people think that the case will be disposed of there and then at Court on this occasion. However, it is the first time that the Judge has heard from both sides and quite often, the Judge will decide that further information is needed before making a final decision.
If the Court orders CAFCASS involvement, CAFCASS will be ordered to prepare a report – the time that it takes varies from area to area although generally, takes about fourteen weeks. If CAFCASS is involved, the case will be adjourned for a period of twelve weeks to fourteen weeks to hear what CAFCASS recommend. As part of their enquiries, CAFCASS are likely to speak to all of the people involved in the case including grandparents and parents. They may also speak to the children although this will very much depend upon the children’s age and understanding.
When the case goes back to Court the Judge will want to know whether or not the parties to the proceedings are all in agreement. If they are, final orders can be made (only if the Judge approves them). If the people involved in the case do not still agree, after the involvement of CAFCASS, as to what should happen with the application, the Court is likely to list the case for a contested hearing.
A contested hearing means that everyone involved in the case will have to give evidence. This means grandparents giving evidence and parents. Both can call witnesses if they choose to do so but again, Judges do not want to clog up too much Court time on hearing from people who may not be able to assist the Court so they should only be used sparingly and wisely. The Judge then decides whether or not the application will be granted and what level of contact should take place. The Judge can ask for the case to be reviewed in a few months to see how the arrangements are going.
CAFCASS stands for Children and Family Court Advisory and Support Service. They have a really good website that can be found at www.cafcass.gov.uk CAFCASS are appointed by Judges to become involved in cases once an application has been made to the Court. Their staff are professionally qualified and are called Family Court Advisors. They will work with families to make recommendations to the Judge about what should happen in particular cases. They will also, if considered appropriate, speak to children, schools, health visitors and anyone else they consider to have important information.
The Courts are now saying that applications for contact cannot be made without the Applicant (usually the grandparent) having referred the case to mediation and having attended a Mediation Information and Assessment Meeting (MIAM). Mediation is an alternative way of trying to sort out the dispute. The mediator meets offers separate appointments to each of the people involved in the dispute. This is to assess whether or not it is a case that is suitable for mediation and to discuss the mediators role with them and to see if it is something that the individuals are prepared to agree to attend. If mediation is considered suitable and everyone is prepared to agree to attend, the mediator will then organise a meeting. Generally, these meetings are joint meetings which are conducted in the same room with a mediator who is an independent third party who tries to assist people in reaching agreements. It is generally cheaper than going to Court and can be a lot more effective than going through the Court process which can cause bitterness and unpleasantness. Mediation is seen as a good alternative way of trying to sort out peoples disputes. As from April 2014, it will be compulsory to the person applying for contact to attend a MIAM before issuing an application to the Court. This will show that mediation has been attempted. There are some exemptions to having to attend the initial mediation appointment, but there are quite strict guidelines, and the necessary evidence must be produced to the Court to show the reason why the attendance at MIAM is not required.
If the other person to the dispute does not attend mediation or the mediator considers the case and the circumstances unsuitable, they will then issue a form FM1 which a person can use to make an application to Court.
The only people who are entitled to go before a Judge in family cases are the people who are named in the application as Applicant’s and Respondent’s. Generally this will be one or two grandparents and both parents. Because the Court proceedings are about children they take place in private chambers and generally, the Judge will only allow those people to be present in Court unless everyone agrees that another person can be present. The only people allowed to speak in Court are the Applicants and Respondents to the application, and their legal representatives.
As from the 1st April 2103, Legal Aid is very rarely available for applications to the Court for contact to grandchildren. In the circumstances, the Court fee is £215.00 but if you do instruct a Solicitor, there are additional costs incurred. Please see the list of prices for assistance from us in being able to help resolve matters. Since Legal Aid has all but disappeared, solicitors practices have had to work hard to offer fixed fees and different levels of service. This means that if you feel confident to prepare the application and serve it on everyone yourself, you may not decide to instruct a Solicitor to deal with that but you might not feel confident enough to represent yourself at Court, in which case it might be more appropriate to instruct a Solicitor. You may decide that the initial Court hearing is something that you can deal with but when the case becomes contested, you want a Solicitor to act on your behalf. In the circumstances, there are all sorts of prices and guidance. Solicitors can also charge at an hourly rate. They are required to give you a costs estimate at the start of your case and to keep you updated about costs regularly. Generally, Solicitors will ask for some money up front from you to represent you. This is because they need some security that they are going to be paid for the work that they deal with. Many firms now offer access to loan agreements, and you may want to speak to the solicitor about that.
It is very difficult to say as each case turns on its facts. The Court will consider all sorts of factors when making a decision about whether or not a grandparent should have contact to grandchildren. They consider what is called the Welfare Checklist.
The Welfare Checklist is as follows:-
Before the Court will make the orders they will consider the welfare of the children. The Court’s starting position is that the welfare of the child is paramount. Any CAFCASS OFFICER or Local Authority that have been directed to file a S7 REPORT will only consider the welfare of the children and address this within their report. They must apply the principles and factors which the Court refers to as the Welfare Checklist.
1. The ascertainable wishes and feelings of the children
This factor reflects the importance of allowing the children’s wishes to be given a place in deciding what is in their welfare. This factor will only be given sufficient weight if it can be shown that the child has sufficient legal understanding. Children of 10 years or older may be understood to have sufficient legal understanding.
2. The child’s physical, emotional and educational needs
This factor focuses on the child and which carer is meeting their needs at the moment.
3. The likely effect on the children of any change in circumstances
If the current arrangements for the children are working satisfactorily the Court would be very unlikely to change them. This attitude is often referred to as maintaining the status quo. It is as a result of this attitude that the person with whom the child is living with is at a considerable advantage.
The Court would also consider what disruption will occur for the children if there is to be a change of residence.
Changing the children’s home would be a significant disruption which the Court would want to avoid.
4. The child’s age, sex, background and any characteristics of the child which the Court considers relevant
Age is a relevant factor to the Court as there is a presumption that younger children tend to need their mothers or their primary carer’s since birth.
5. Any harm that the children have suffered or are at the risk of suffering
This factor will cover any past or future harm to the children. Harm is a very broad term and covers physical and psychological injuries. For there to be a change of residence the Court would want to see evidence that the child has suffered some harm or is at the risk of suffering some harm.
6. How capable are each of the children’s parents and any other person in relation to whom the Court considers relevant as meeting the children’s needs
This factor involves the Court looking at the parents and other proposed carers to assess their ability to care for the children.
7. The range of powers available to the Court under this act in the proceedings in question.
This factor encourages the Court to think laterally and consider every option open to it including that of not making and order at all.
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