Grandparents And Applications
I appreciate that most grandparents will find the task of getting solicitors involved as a costly exercise, however ,my support would be extremely effective in resolving matters without the need of costly legal teams.
Advice on your application is free so why not send me an email to discuss matters, please have a read of the topics below to help you understand some of the points the courts will consider.
You can apply for a Child Arrangements Order Residence if you
- Are the child’s parent, guardian or special guardian
- Are the child’s step-parent, who is married to (or is a civil partner of) the child’s parent and the child has lived with you as a ‘child of the family’
- Are a foster carer approved by Children’s Services who has had the child living with you for at least one year
- Are a grandparent, aunt, uncle, sibling or step parent and you have had the child living with you for one year
- Are anyone else and the child has been living with you for at least 3 years (in the last 5 years)
- Have the agreement of anyone who already has a Residence Order on the child; or
Children’s Services if the child is in care, or
- Everyone else with Parental Responsibility for the child.
If you are successful, you can apply for a Contact Order through the court to gain access to your grandchildren. If one, or both parents raise objections you are likely to have to attend a full hearing in which both parties can put forward their evidence. It is essential that you receive good legal advice at this stage because you will need to persuade the court that you have a meaningful and ongoing relationship with your grandchildren, which significantly benefits their lives.
The court will always consider all the child’s circumstances and must only make an order where they consider it better for the child than making no order at all. For example, they might have to weigh up whether your continuing contact with the child might have a negative impact on the rest of the family relationships, again it is only in extreme circumstance that a court will refuse access to grandchildren. We have successfully helped many grandparents resolve disputes amicably and gain access to their grandchildren
Grandparents still need to seek leave to apply for any section 8 order (most usually contact but sometimes residence) under the Children Act 1989.
They may benefit from the exceptions to the requirement to seek leave under section 10(5)(c) – namely where they already have a residence order, where the child has resided with them for three years, or where those with parental responsibility agree. The test for leave is set out in section 10(9) but does not differentiate grandparents from any other applicant requiring leave. Therefore a grandparent whose grandchild has lived with them for two years and 11 months will be subject to the same hurdle with regard to leave as somebody who is not a blood relative and who has never cared for the child. Of course the outcome of applications for leave as between two such applicants may well be different, but the existence (and discouragement) of the extra hurdle is the same for both. Surely a grandparent who has provided sole care or the majority of care for a child should benefit from the right to make an application for a section 8 order without having to seek leave beforehand.
We suggest making an application to the courts for leave and then explain in your statement as to why you're making the application!
What are your answers to these questions
- Why has contact been refused to you
- When did you last see your grandchildren
- How much contact did you have before it was stopped
- Have there been court orders in the past
- Are there any applications pending?
- Have there been any allegations of violence or abuse
What are facts
Facts are events and other things that, because they can be shown to have happened or to exist, cannot be disputed. Examples include: the date of a missed appointment that was written your diary, the name of the school your grandchild goes to, the date when their tonsils were taken out, what you had for breakfast.
Facts are not: opinions, plans, conversations that have not been recorded and witnessed, guessed-at dates, approximate times and places.
Some facts can be disputed, and these are what the court has to decide on after looking at the supporting evidence. When it decides what the truth is, it will then decide what is best for your grandchild, based on the facts before it.
If you tell the court what you think is a fact, you'll need supporting evidence. Here are some examples of the supporting evidence often used in these applications:
A letter from your GP saying that you are fit enough to look after your grandchild
letters from neighbours who have seen that your grandchild has been happy when they've been with you
A letter from your grandchild’s school to say that they were sick, missed school, came late, arrived in dirty clothes, etc.
It's very important that you think about your future and the future of your grandchild. Your seeking contact may be dependent on your age and that of the grandchild – for instance, you may feel that it would be better to wait for contact until they're older.One key issue that worries grandparents is that the parents who have custody of their grandchildren will make the children’s life hell if they're forced to visit their grandparents. In this situation, you could decide that telephone contact would be safer for your grandchild.
Are social services involved with the family in any way? They're good to have on your side as they have to consider family members as potential carers, even on a temporary basis. You might have to go to see a social worker for advice.
How do I enforce a contact Order?
Recent change in Law – 8 December 2008. Courts have new powers to try and ensure compliance with Contact Orders.
Previously option for enforcement was to applying for penal notice to be attached to the order and then if further breach of order is proven (beyond reasonable doubt) person is in contempt of Court with a penalty of imprisonment and/or fine
1. New Enforcement Measures:
Contempt of Court leading to imprisonment and/or fine– as before but now warning notice automatically on the order
Courts can make an “Enforcement Order” - requires a person to undertake unpaid work or order can be suspended.
If breach causes financial losses.
Standard of Proof of breach needed – beyond reasonable doubt
2. Warning Notice must be attached to every new contact order and when varying an old order, warns that:
- If breach order may be held in contempt of court and imprisoned or fined; and/or
- If breach order Court may require you to undertake unpaid work and/or pay financial compensation
3. New power to make “contact activity directions” and “contact activity conditions”:
Order someone to take part in activity designed to promote contact: Includes:
- programmes, classes, counselling or guidance sessions which aim to establish, maintain or improve contact
- Address a person’s violent behaviour in order to facilitate contact
- Information/advice sessions about ways of making contact arrangements
They CANNOT force someone to take part in medical examination, assessment or treatment or in mediation.
“contact activity directions” are made during the course of court proceedings and “contact activity conditions” are made with final orders.
Information about the activities will usually come from CAFCASS
4. New power to order CAFCASS officer to monitor person’s compliance with Contact Orders and contact activity directions & contact activity conditions. Will then report back to Court.
- Legal fees
If a child (previously) Looked After Child by the LA?
Special Guardian can appoint a Guardian to care for child in event of their death Not permitted to appoint guardian - that power remains with parent(s) with PR
Duration Lasts until child reaches age of 18 Lasts until child reaches age of 16 unless exceptional circumstances
Discharge: Leave is required to apply for discharge or to apply for Residence Order. Those with PR, and father without PR can apply to discharge order (as can those with leave)
Does a grandparent need to seek leave (permission) from the court before making a court application?
Leave for Section 8 Special Guardianship Orders
Any Section 8 Orders – Residence, Contact, Specific Issue, Prohibited Steps Orders, can apply for any Section 8 order without leave if they already have Parental Responsibility from:
• Residence Order;
• Special Guardianship Order; or
• Appointment as Guardian
Residence and Contact Orders only can apply if can satisfy either “residence” or “consent” condition
1. Residence – has child lived with grandparent for a period of at least 3 years?. – does not need to be continuous but must not have begun more than five years before application or ended more than 3 months before application made.
2. Consent – has the grandparent got consent from the right people?
– is there a Residence Order? if so, consent of Residence Order holder;
– is child in care (Care Order)? If so, consent of Local Authority;
– Need consent of everyone with PR – best to get this in writing
Special Guardianship – same rules apply
What if leave is required?
Otherwise must apply for leave of the Court
Application for leave is made on Court form C2
Plus main Application, see my page on application forms
on C100 – New Form – for all Section 8 Orders
on C1 plus C13A for Special Guardian ship Order
Can be made with or without Court hearing
Court can consider the application and grant leave without hearing from parties.
Generally, Court will list a hearing to consider the application on notice to the other parties.