Sometimes parents struggle to care for their children, particularly after a separation. This is where Grandparents often play a very supportive role, helping with child care, helping financially and providing a shoulder for the parents to cry on.
On occasions parents struggle so much that the Grandparents have to step in and look after a grandchild/grandchildren. Generally, Grandparents take on this role on a temporary basis, but sometimes, it is necessary for the Grandparent to take over the care of a child.
There are various different orders that can secure a Grandparent’s position in these circumstances. However, the Grandparent must get legal advice as to which is the most appropriate order to obtain. Grandparents have some rights to their grandchildren, but they are limited. There have been recent changes in the law, so a Grandparent can apply for a Child Arrangements order, asking for an order that the child lives with them. But this does not mean that the Grandparent will receive any financial support from the Local Authority, or Government, other than the Child Benefit payment. A Special Guardianship Order may result in a payment being made on a regular basis to a Grandparent caring for a grandchild, or grandchildren.
Frequently Asked Questions
A Child Arrangements Order can say where a child should live. It used to be called a residence order, and before that it was a custody order. Under the Children and Familes Act 2014 it confers parental responsibility on the person who is named in the order, which means that they can make decisions about a child on a day to day basis. They should consult with others who have parental responsibility for the child about making bigger decisions, such as where the children go to school, what religion they practice etc.
If a Grandparent needs to legalise their position to apply for a Child Arrangement Order, they must have attended a Mediation Information and Assessment Meeting first. If that is not considered suitable, or the other side do not attend, the next step is to make an application to Court.
Sadly, Grandparents rights do not allow them to apply for a Child Arrangements order in their favour straight away. To convince the Court that they should be able to bring the application, 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 the 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.
Before an application can be made to court, you have to have attended a MIAM (Mediation Information and Assessment Meeting). Click on the “What is Mediation?” question below
The Court can accept applications from the people themselves. You do not have 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 residence and on a Form C2 to apply for permission for a child arrangements order (hyperlink to Ministry of Justice Website forms page). That application is then lodged with either 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:-
1. 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.
2. The Court sends back the papers to the grandparents to serve upon the opponent (usually the parents).
3. The Court give a date (usually one month to six weeks after the date of issuing the application)
4. 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.
5. 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, this 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.
6. 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 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 residence 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 mediator’s 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 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 residence 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 are unsuitable, they will then issue a form 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 2013, 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 a grandchild living with them. They consider what is called the Welfare Checklist. The Court consider the following:
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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