Grandparents, grandchildren and the law

A recent case before the Court of Appeal featured an appeal by grandparents of a decision in care proceedings to grant an Interim Care Order placing two young children in the care of the Local Authority rather than with the extended family (T (Children) [2015] EWCA Civ 453). The grandparents were not considered by the Local Authority to be able to care for the children long-term, but the Court did not agree. Despite this, however, the Court did make the interim care order and the children were placed in care.

While the circumstances of this case are very specific, it does highlight an issue with which we are regularly faced – the involvement of many grandparents in raising their grandchildren and the thorny issue of grandparents; ‘legal rights’ in respect of their grandchildren.

We are often contacted by grandparents who wish to become involved in legal proceedings – either public or private – to keep their grandchildren within the family or to try and maintain contact after parental separation. This blog deals with the situation in care cases only.

The commitment, and often the sacrifice that becoming involved in care proceedings entails, is important to recognize. For a very young child who is the subject of care proceedings this may be the only opportunity to keep them within the family and, by extension, to maintain a real relationship between that child and their parents where adoption is the alternative.

If a Local Authority initiates care proceedings with the court, only those with parental responsibility will automatically be a party. Parties to care proceedings have the right to see all of the evidence in those proceedings. Crucially, parties are also automatically eligible for non means tested legal aid. If the child or children in question are already living with the grandparents they may already have parental responsibility. This will depend on whether or not there is already a court order in place, how long the child has been living there or whether the parents agree to a delegate parental responsibility to the grandparents.

In order to be made a party to care proceedings the permission of the court is needed. It is essential to get good legal advice on your position as every case is different, these issues can be extremely complicated, and involvement in any kind of legal proceedings can be extremely expensive.

If there are no care proceedings ongoing but a grandparent wishes to apply to the court for a Child Arrangements Order that says a child lives with them, or that a child should have contact with them, they will need the permission of the Court to make an application. This rule will apply in most cases. Grandparents can also apply for a Special Guardianship Order which in very difficult family circumstances can give the grandparents a stronger form of parental responsibility that overrules the parents parental responsibility. The most important thing for the Court is to decide what is in the best interests of the child and this is what the judge will look at. So issues like where the child is living and the child’s relationship with the person applying to go to court are incredibly important.

Going to court can be both daunting and very expensive. Since April 2013 legal aid is no longer available in many cases involving children. This makes it more important than ever to have at least one comprehensive consultation with an expert family and child solicitor who can look at all aspects of your case and advise you on the possible outcomes should you decide to go to Court. One of the gateways for legal aid is whether the child or children concerned have suffered “abuse” and a letter from a social worker or child protection plan will suffice.

If you are affected by these issues and would like to speak to an expert, please call us ………