In these unprecedented times, when for so many reasons parents split up and their children become vulnerable, be it because one of them have succumbed to the coronavirus, leaving the other parent in difficulties to care for them, or because of a relationship dispute between parents, grandparents may feel they are in a better position both financially and otherwise to look after their grandchildren, and the question often arises as to what rights grandparents have in law in relation to their grandchildren.
The important role of grandparents
Grandparents do play an important role for their grandchildren. The increasing cost of child care, the busy life of parents at work, and the financial security grandparents have established over the years leading up to retirement, together with the time they have in retirement to do the school runs, cook and babysit for their grandchildren, have placed much reliance by parents on grandparents to help out. In most cases, this works well, and parents welcome the direct involvement of their own parents in their children’s lives.
What happens when parents are not able to care for their children?
Parents in these troubled times may have lost their jobs and unable to pay rent and may be on the verge of eviction. In these circumstances, the social services may intervene to guard the best interests of the children, and grandparents can step into a surrogate role, to prevent the children from going into care. There may also however be disputes between parents and grandparents with parents refusing to let go, fearing they might lose their children if grandparents step in.
The current position
Unfortunately, the law is not at present helpful towards grandparents. The children Act 1989 does not make specific references to grandparents. If parents don’t agree to the grandparents looking after their children in troubled times, or having contact with them, then grandparents will need to make an application to the court to seek permission to apply for a section 8 Child Arrangement Order, under section 8 of the Children Act 1989 as amended.
If say the children’s father has made an application to see his children because their mother with whom the children live has refused permission, then the application by his own parents (the grandparents), to make an application for permission to apply for a section 8 order, is unlikely to succeed, because the court may view the grandparent’s application as a duplication of the father’s application, on the basis that there is no reason why the children cannot see their grandparents at the same time as their father. See Re W (A Child) Care proceedings: Leave to apply) 2005 2FLR 468).
When do grandparents have to make an application so they have parental responsibility?
There are times when a need may arise for a grandparent to make a life-changing decision for a grandchild. If a child has been living with their grandparent for some time, and say has been proved to be COVID-19 positive and in hospital, the hospital may refuse to take instructions from the grandmother on the basis she has no parental responsibility, forcing her to make a formal application for a child arrangement order to give her that responsibility to make a decision for her grandchild. In such a case there will be a clear need for parental responsibility, but the application will be made to the court and heard by video link to prevent face contact during the current crises, and documents sent to the court by email.
General advice to grandparents
1. It is important to try to resolve any issues within the family if possible.
2. Mediation should be considered between all parties as this is a requirement in any case before a court application is filed.
3. Applications to the court are costly both financially and emotionally. Legal aid public funding is not available.
4. If a grandparent is adamant in making an application to the court, consideration needs to be given if an application for leave must first be made. There are some situations where a grandparent can make an immediate application, but these are limited, for example when the social services support the grandparents to care for the children. In any event, if permission is required then form C2 and C100 must be filed with the court together with the court fee and a notice of acting by the solicitor. If there has been violence then further forms may need to be filed. The court will fix a hearing date for the permission application. The application will also be served on all parties who have parental responsibility for the child.
5. If permission to file is granted, a first hearing and disputed resolution appointment will be arranged no doubt at present by video link to hear the substantive application for a child arrangement order, and for safeguarding checks to be undertaken.
6. The application will be for a section 8 order.
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Dr Bernard Andonian – the Co-Founder of Gulbenkian Andonian Solicitors, is an experienced Immigration Solicitor, former Judge, and recipient of a PhD in Law from the University of West London. He has over four decades of experience practising UK Immigration, Human Rights and Civil Litigation Law. He has served on the Law Society Immigration Law Panel, achieved numerous groundbreaking decisions in higher courts and is featured in the Legal 500’s Hall of Fame.