Grandparents across the UK help parents save significant sums a year on childcare, and if parents cannot take care of their children (whether temporarily or for longer periods) it is often grandparents who will step in and take over that role.
It is therefore a source of great frustration to many that the advice on helping separated families with child arrangements is almost exclusively geared to 'traditional' family structures, helping them agree on or ask for the Court's assistance to determine child arrangements. Additionally, Grandparents will often be the first port of call for local authorities looking for a placement for a child where there are safeguarding issues.
At Birketts, we understand that this can be an emotional process. The Birketts Family Team has experience with helping grandparents in various situations. We can advise you on how to resolve your dispute in the most child focussed way for your grandchild or grandchildren and support you in identifying the process that will result in a resolution.
Do I have an automatic legal right to see my Grandchildren?
Grandparents do not automatically have 'parental responsibility', which provides all the rights and responsibility for a person to determine the day-to-day arrangements and important decisions for a child. Those with parental responsibility have an automatic right to apply to Court to ask them to determine child arrangements where there is a disagreement between parents.
Even though you do not automatically have this right, you can still try and reach an agreement with your grandchild's parents on contact and living arrangements.
Try to reach an agreement out of court
There are several ways for people to try and resolve disagreements on child arrangements; direct discussions, mediation, or solicitor-led discussions. To begin with it is also sensible to try to take a non-legalistic approach (unless there are pressing safeguarding concerns). The Family Court is not there to solve what may be relationship issues, and working with a Systemic Family Therapist ('SFT') may be the best method of resolving complex long-standing issues within families. An SFT enables family members to work together to make useful changes in their relationships and lives.
A member of the Family Team at Birketts can help you look at all options before you make an application to the Court.
Any voluntary agreement on child arrangements can be set out in a parenting plan. However, this is a non-binding record of your agreement, unlike a Child Arrangements Order.
The Court can be reluctant to place agreements reached out of court in a Child Arrangements Order unless that child is already the subject of court proceedings. This is because there is a 'no order' principle i.e. an order will only be made if it is in a child's best interests and the Court does not consider that always to be necessary where there has been an agreement reached outside of court. However, you should discuss with your solicitor whether the Court might approve a consent order in your circumstances, as there are situations that may warrant an agreement being placed into a binding order (e.g. if there is issues around repeated breaches of a parenting agreement).
Routes to court and permission to apply
Sometimes out of court resolution is not possible or appropriate where there are concerns about a child's safety or wellbeing. In the case of the latter, more urgent intervention may be required and taking the initiative to make an application to the Court for contact is likely to be advisable to avoid the matter being taken out of your (and your child's parents) hands by social services.
If a grandparent or other family member is asked to step in to assist by social services as part of a child protection, this may create further issues within the family whilst keeping a child safe.
In these circumstances, it may be appropriate for a grandparent or other family member to be granted a Special Guardianship Order ('SGO'). An SGO will enable you to take on the responsibility of caring for your grandchild until they are 18 years old. For the year ending 31 March 2020, 89% of SGOs were made to relatives or friends. If this order is granted you will have parental responsibility over and above the parents. You can also get financial support to assist with the upbringing of your grandchild.
If you are bringing the application privately (where the LA is not the applicant), as you do not have an automatic right to apply to the Court, you must first seek permission to apply. This may very well be the only option where you cannot reach an agreement, you need an agreement to be placed into a binding order because of repeated breaches, or where you have urgent welfare concerns for your grandchild.
When considering whether to grant permission, the Court will consider the circumstances behind your application including your connection with the child, why the application has been made and whether it is in a child's best interests for an order to be made.
If you are granted permission, the Court will then consider what order is in your grandchild's best interests. Being granted permission is procedural and there is no guarantee that this will then mean that the court makes an order in your favour. The Court will appoint a CAFCASS officer to consider if there are any safeguarding issues and whether they would recommend an order be made to grant you a child arrangements order and/or parental responsibility.
All those with parental responsibility will be parties to the proceedings and will have the opportunity to raise any objections in the court process.
It is increasingly common that, unless there is concerns about abuse or wellbeing, the Court will make orders in a grandparent's favour where it is in a child's best interests to do so, as they recognise that it is important for grandparents to have contact with their grandchildren.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
