A sad but not uncommon problem arises when parents get divorced and typically the child goes to live with the mother and contact with the child’s paternal grandparents is denied. Problems also arise if the parents separate, one dies, or there is a family feud and the grandparents and parents fall out. Again there can be major contact problems when a local authority removes the child from the family and the grandparents want to bring up or at least to have regular contact with the children.
If that is the situation, you as a grandparent might consider the following possible remedies:
- Going to court for a residence or contact order. These orders can be sought in two different ways. If legal proceedings involving the child have been started by someone else, then grandparents can seek to become involved and ask for such orders to be made. If, for example, the mother and the father have started contact/residence proceedings, then you can seek to join in those proceedings. Grandparents may also seek to become involved in adoption proceedings or care proceedings.
Grandparents do not have to wait for other proceedings, they can begin proceedings themselves. Indeed, they may have to do this in a family feud scenario. If the child has lived with the grandparents for at least three years (this period need not be continuous but must not have begun more than five years before, or ended three months before the making of the application) they are entitled either to join in or to start proceedings. They are similarly entitled if they have the consent of each of the persons having parental responsibility. If they are not entitled, they must seek the court’s permission which requires making a separate application to the court either to join in or to initiate proceedings.
- Becoming the grandchild’s special guardian (see before). As in the case of residence orders, if the child has lived with the grandparents for at least three years (again, this period need not be continuous) they are entitled to apply to a court for a special guardianship order. They are similarly entitled if they have a residence order in their favour or if they have consent of each of the persons having parental responsibility for the child. If they are not entitled they must seek the court’s permission to make the application. Another requirement when applying for a special guardianship order is to give the local authority three months’ written notice of the intention to make the application.
It is not always necessary to make an application since the court itself has the power to make a special guardianship order even where no application has been made. It could do this, for example, in section 8 proceedings or in care proceedings; but before doing so the judge must obtain a report from the local authority. In other words, in no circumstances can a special guardianship order be made without a local authority investigation and report. In deciding whether or not to make a special guardianship order the court must regard the child’s welfare as the paramount consideration.
- Adopting the grandchild. One important change to the law (introduced by the Adoption and Children Act 2002) is that before grandparents can apply to adopt grandchildren they, like other relatives, must have provided a ‘home’ for the child for at least three years (under the previous law such a home only had to be provided for, for 13 weeks). This was a deliberate change to discourage grandparents (and other relatives) from seeking adoption orders and to encourage the use of other options such as special guardianship instead. Where grandparents have provided a ‘home’ for the child for the requisite period they, like other relatives, can apply to adopt. Like other relatives, grandparents are not subject to the requirement that the child must be placed by an adoption agency, so that an informal placement with them by the mother is perfectly lawful.
The courts do not readily make adoption orders in favour of grandparents, in part because if there is to be continued contact with the rest of the birth family, adoption seems inappropriate and in part because it distorts the legal relationships in that the grandparents become the parents and the parents become the siblings of the child. This predisposition not to make adoption orders in favour of grandparents is likely to have become greater with the availability of special guardianship and enhanced residence orders.
- Applying to become a grandchild’s guardian. Another option open to grandparents is to apply to the court to become the child s guardian. This option will only be available if the child has no parent with parental responsibility for him; or a residence order has been made with respect to the child in favour of a parent or guardian of his who has died while the order was in force.
In other words applications, can only be made where both married parents or an unmarried mother (and the unmarried father, too, if he has parental responsibility) are dead or on the death of a parent in whose favour a residence order has been made. In these circumstances, grandparents would be better advised to seek to become a guardian rather than to obtain a residence order, because as a guardian they can withhold agreement to the child‘s adoption and can themselves appoint a guardian. They do not need to go to court at all if they have been appointed a guardian by the parent in his or her will, or in a signed and dated document. Such an appointment will normally take effect upon the death of parents with parental responsibility, but if an appointing parent had a residence order in their favour it takes effect upon the appointer’s death.
Thanks very much to Punam Denley, a partner at the International Family Law Group LLP for reviewing and to David Hodson, also partner at the International Family Law Group LLP, who reviewed an earlier version which appeared in A Parent’s Guide to the Law by Jon Robins (LawPack , 2009). Stephen Lawson, a litigation partner at Forshaws Davies Ridgway LLP assisted with the section on the CSA.