Unlike parents, grandparents have no automatic rights when it comes to matters concerning grandchildren under English and Welsh law.
This blog will help you understand your rights and what you can do to:
- Maintain or re-establish contact where it is lost through a Child Arrangements Order
- Ask the court to make a decision usually taken by those with parental responsibility through a Specific Issue Order
- Act to prevent a specific act by the parents through a Prohibited Steps Order
What is the first step we should take with any of the Orders?
In most cases, mediation must be attempted in the first instance unless neglect, abuse, exposure to harm or something of that nature has taken place.
Mediation is less damaging, quicker and cheaper than going through the courts. It involves all parties taking part in forward-thinking conversations with a neutral mediator to find a way forward.
If mediation is unsuccessful or an unsuitable option, you can consider applying to the courts for a Child Arrangements Order, Specific Issue Order or a Prohibited Steps Order.
Child Arrangements Orders
In the event of a dispute or family breakdown, we often hear that grandparents are prevented from seeing their grandchildren.
A Child Arrangements Order sets out how often and under what circumstances grandchildren can see you. Orders stipulate terms for in-person visits, telephone calls, messages or any other method of contact.
To apply for a Child Arrangements Order, you will need to get permission from the court.
The court will primarily consider the relationship the grandparents had with their grandchildren prior to contact being withdrawn, whether re-establishment will be beneficial to the children, and whether the children would be at risk if the Order were made. Permission to apply for a Child Arrangements Order should be granted if the court believes the application is in the child’s best interest.
What happens next?
- After the application is received, a date will be set for the first court hearing. During this hearing, the case will be discussed with both parties to attempt to reach an agreement
- If harm, neglect or abuse is alleged, the court will hold a second hearing to determine the veracity of the claims
- If an agreement has not been reached by this stage, the court will hold a further hearing and consider reports from social workers and other professionals
- A final hearing may be necessary to consider evidence from both sides
Specific Issue Order
A Specific Issue Order stipulates matters related to the child’s upbringing, such as where they go to school, what religion they should follow or what medical treatment they can receive.
Like a Child Arrangements Order, grandparents will need permission from the court to apply as they don’t have automatic parental responsibility. Applications will be considered in respect of the child’s best interests.
What happens next?
- After an application is approved, the first hearing will be scheduled within around six weeks
- If the first hearing does not reach an agreement, a second hearing will attempt to resolve disputes
- If agreement can’t be reached in the second hearing, a fact-finding hearing might be held prior to a final hearing, or the case may go straight to a third and final hearing depending on the circumstances and the evidence presented
Prohibited Steps Order
A Prohibited Steps Order prevents a particular action from happening without permission from the court, such as the child being moved permanently abroad. It can be temporary or permanent.
As is the case with a Child Arrangements Order or Specific Issue Order, grandparents will need to seek permission from the court to apply for a Prohibited Steps Order who will determine whether it’s in the child’s best interests to grant a hearing.
What happens next?
- Once the application is approved, a hearing will be scheduled where both sides present their case
What is the view of the court when issuing Orders?
Family courts will always put the emotional and psychological wellbeing of children at the forefront of decisions. Judges recognise that grandparents can play an important part in a child’s life and that valuable close bonds can be impacted if contact is lost.
Cases are looked at in accordance with a welfare checklist, as detailed in Section 1.3 of the Children Act 1989. This includes considering:
- The child’s wishes, according to their age and understanding
- Physical, emotional and educational needs
- The likely effects of any change of circumstances
- The child’s sex, background and relevant characteristics
- Any harm being suffered or risk of harm
- The child’s parents and their capabilities to meet their needs
The role of CAFCASS (Children and Family Court Advisory Support Service)
In England, CAFCASS independently represents the interests of children and young people in family courts, with officers advising the court about the welfare of children and what is in their best interests.
In most cases involving children, CAFCASS officers are involved from application to conclusion. They will:
- Carry out safeguarding and wellbeing checks at the early stages, typically prior to the first hearing
- Prepare reports and make recommendations to the court after speaking to both parties about any issues and making enquiries with relevant authorities, such as the child’s school, social services or their GP
A brief outline of guardianship
If both parents are deemed unfit or neither can care for the child, grandparents can apply for guardianship.
Orders include:
- Special Guardianship Order – where grandparents care for the child until they turn 18
- Child Arrangement Order – as outlined above, the court can decide that the child should live with grandparents
- Kinship foster care – where grandparents become official foster carers
- Adoption – this gives grandparents legal parental responsibility over the child instead of their birth parents who have automatic parental responsibility. Adoption is typically granted only in exceptional circumstances
AGR Law
Our team of family law experts can help with any issues surrounding grandparents’ rights.
For more information, contact us on hello@agrlaw.co.uk or call us on 0116 340 0094.