When parents separate, there can often be a dispute about the arrangements for any children. Whilst there is a presumption by the court under Section 1(2A) Children Act 1989 that the involvement of a parent in a child’s life will further their (the child’s) welfare, grandparents and extended family members can often be overlooked and forgotten.
Although I will refer to grandparents below, the same circumstances could apply when considering uncles, aunties, cousins and other extended family members, or even those that have been seen as family.
Before any application is made to the court, a grandparent will need to complete a referral to mediation and attend a Mediation Information and Assessment Meeting (MIAM).
Under the Children Act 1989, either parent, or a person with Parental Responsibility, is able to apply to the court for a Child Arrangements Order. This sets out with whom a child should live, or the time and arrangements for any contact with the other party, however there is no automatic right for grandparents or extended family unless one of a number of exemptions apply.
If none of the exemptions apply, before the court will consider an application by a grandparent or extended family member for a Child Arrangements Order, they first need to obtain the court’s permission. The intention of this is to filter out applications without a genuine motivation that would intrude on the child(ren)’s life.
When considering an application for permission to apply for an order, the court will consider and apply the checklist contained in Section 10(9) Children Act 1989:
- The nature of the application;
- The Applicant’s connection with the child(ren);
- Any risk of the application disrupting the child(ren)’s life;
- If the child is being looked after by the Local Authority;
- The Local Authority’s plans for the child(ren)’s future plans;
- The wishes and feelings of the child(ren)’s parents.
Copies of any application would need to be sent to the parents, along with anyone else that holds Parental Responsibility, in order to obtain their position in response to the application.
The case of Re: J (Leave to Issue Application for Residence Order) [2003] 1 FLR 114 considered an application by grandparents to be joined as a party to care proceedings, determining that the application should not be dismissed without proper investigation and the court should not be swayed by considering whether the Applicant has a ‘good arguable case.’ In this case, Thorpe LJ was a strong advocate for the valuable contribution that grandparents make to a child’s life. He also emphasised the link to articles 6 and 8 of the European Convention on Human Rights, the right to a fair trial and right to respect for family life respectively.
If permission is granted to consider the application for the Child Arrangements Order, the court will then consider the substantive application, at which point the court will consider and apply the Children Act ‘Welfare Checklist.’ However, the presumption that the life of a child is furthered by contact with their parents does not apply to extended family members.
I previously represented paternal grandparents in an application for contact with their grandson following the breakdown of the parent’s relationship. The grandparents had previously been enjoying caring for their grandson twice a week, but following the breakdown of the relationship did not see him. Although the father was not pursuing contact with the child, given the close relationship the child had enjoyed with his grandparents, I was able to successfully convince the court that the grandparents should have court ordered weekly time with their grandson to be able to continue their close relationship and quality time with him. This emphasises that the refusal of a parent to have contact, or their inability to do so, such as through imprisonment or death, does not mean that their extended family should not be able to continue to have a relationship with the child.
Although when a child is spending time with the respective parent, they are able to take the child to spend time with their family should they wish, however in certain circumstances it may be appropriate for a grandparent to have separate designated time with the child.
Extended family members cannot make an application for Parental Responsibility, this only being obtained as a result of an order being made which automatically includes Parental Responsibility, such as a Child Arrangements ‘Live With’ Order (Formerly a Residence Order).
Just as every person is different, every family composition is different, with the court needing to be flexible to ensure the best outcome for the child is obtained.
I previously represented two aunts who were seeking to obtain Parental Responsibility for their niece. The child’s mother had sadly died, with the father often working away. The child had a number of medical conditions, meaning she was in residential care and at times urgent life or death decisions needed to be made about medical treatment. The father was the only person holding Parental Responsibility and therefore the only person who could provide permission to undertake medical treatment. Due to his working situation, he was often uncontactable and all parties agreed that the aunts should be given Parental Responsibility to be able to make decisions and provide medical consent. Matters were complicated as the child was in residential care due to her health, meaning she did not technically ‘reside’ with anybody.
After considering written and oral evidence from myself, on behalf of the aunts, the court made a Child Arrangements ‘Shared Live With’ Order that the child should live with the aunts and father, although remaining in residential care, thereby providing the aunts with Parental Responsibility and being able to make decisions in relation to the child’s medical treatment. Although the child was likely to remain in residential care, and not reside with the aunts, the making of this order was the only way the court could allow the aunts to be able to make decisions, which was what was in the best interests of the child and their welfare.
Another unusual case I dealt with involved a joint application for Special Guardianship Orders by multiple members of a child’s extended family, including their full sibling, paternal grandmother, paternal aunt and family friend.
The parents both died within a few weeks of each other unexpectedly and under tragic circumstances, leaving their two sons with appointed carers. The eldest child was over the age of 18, but the youngest had not yet reached his teens and had a number of important developmental years ahead of him. His family unit each felt that individually none of them could meet the child’s needs, but each of them had a different skill that they provided to his upbringing, and between them were able to meet all of his needs.
I assisted the family in making applications to the court for a Special Guardianship Order, providing each of them with joint parental responsibility, and assisted them through assessments by the Local Authority. Although the eldest sibling withdrew from the assessment early on, the rest of the support unit continues to be assessed.
The allocated Social Worker, although providing positive assessments about each member’s ability to care for the child, was very resistant to that many people being made Special Guardian’s and being allocated Parental Responsibility. After preparing and providing statements to the court, as well as making oral submissions to the Judge explaining the reasons why this option was the best for the child, the Court approved, making Special Guardianship Orders ensuring security and certainty for the child’s future.
The role of grandparents and extended family member’s in a child’s life should not be underestimated. In cases where parents are unable to care for a child, the court may look to grandparents and other family members as potential alternate carers, either under a Child Arrangements Order or Special Guardianship Order.
If you wish to speak to one of our experienced family practitioners, about either seeking contact, or in being a carer for a child then contact myself or one of the family team based across Hampshire and Dorset on 01962 844333 or contact@duttongregory.co.uk.
