Grandparents, grandchildren and the law – Part 2
Grandparents have a vital role to play in the lives of their grandchildren. Often, grandparents provide vital care for children when parents need to work to make ends meet. Many parents claim that without grandparents this would be impossible while 4 in 5 teenagers say grandparents are the most important people outside immediate family (http://www.grandparentsplus.org.uk/).
Yet all too often when things go wrong within families, grandparents – and by association their grandchildren – are the ones who lose out. Sometimes the bitterness or the geographical distance that can result from divorce means that contact between grandparents and grandchildren is stopped. Sometimes it’s as a result of problems experienced by parents – possibly addiction or violence at home – that grandparents are excluded. In these situations, what can grandparents do?
Contact with grandchildren
The sad reality is that in law, grandparents don’t have an automatic right to see or spend time with their grandchildren. However, the courts recognize the important role that grandparents can play in a child’s life and there is a mechanism for approaching the court about this.
A grandparent can ask the court for permission to make an application for a Child Arrangements Order (CAO). This replaced the previous orders for contact and residence in April 2014, but in essence it’s the same thing – it’s a court order stating where the child lives and / or who he or she has contact with.
In deciding whether or not to allow a grandparent (or anyone else who does not have parental responsibility) to make an application for a CAO, a judge will consider the following:
– What is the applicant’s relationship with the child?
– What order is the court being asked to make?
– Could the child be harmed if the application is granted? – the court will generally act to preserve the status quo unless there is a very good reason to change it as such a big change can have a major – and sometimes damaging – impact on a child.
If the child is in the care of the Local Authority the court will also consider the Local Authority’s long-term plan for the child and the parent’s wishes and feelings.
If the court grants permission for the application to be made, you can expect proceedings to continue for several months at a minimum. It is very difficult to estimate the length of such a case, but it is usual for the court to examine the situation around the child and family by means of a report by a Court Welfare Officer from CAFCASS.
As with all family proceedings, it can be very emotionally charged to take any case against family or former family members and can make existing tensions worse, so we advise that you get good legal advice before you make any application for a court order.
You will also need to consider how you are going to pay for legal proceedings. This is increasingly difficult to secure in private law children cases. Please take a look at our blog Legal aid: public and private law and give us a call if you have questions.
If Local Authority social workers are involved with the children you may find it much easier to qualify for legal aid (subject to means).
Permanently caring for grandchildren
In some cases, for instance where parents cannot care for their children and the Local Authority has become involved, grandparents may put themselves forward to care for their grandchildren permanently. There are numerous studies on kinship care (long-term care for children within their extended family) from a number of countries, all of which indicate that this is beneficial for children. Children cared for by family tend to be more settled than those in the care of others, such as foster carers. They are less likely to want or need to be moved to another placement in the future and they also do better in school.
Parents involved in care proceedings will be asked to put forward names of family members who can care for their children if the court decides that the parents cannot care for them. If parents do not put the names of grandparents forward as potential carers, those grandparents may still apply to become involved in the proceedings and may get legal aid. Sometimes the Local Authority will actively support this to the point where they may offer to pay for an initial legal consultation.
Becoming involved in care proceedings can be both complex and harrowing. As a grandparent if you are made a party you will be privy to reports about your children and your grandchildren that may make difficult reading but are vital so that you can reassure professionals that you understand their concerns and can protect the child/ren if the child/ren come to live with you. We can help by supporting your through the process and explaining what is happening at every stage.
Possible orders made in favour of grandparents in care proceedings can include a Child Arrangements Order (CAO) or a Special Guardianship Order (SGO). We can advise on all these potential orders and which would be better suited to your family circumstances.