There are a couple of reasons why a grandparent may not be able to see their grandchildren. These may be, but are not limited to:
- The parent will not allow access for you to see the child because of a dispute or disagreement;
- There are current Care Proceedings and you are not involved; or
- The child is in Foster Care.
Grandparents often feel left behind, desperate and unsure of what they can do to be part of their grandchildren’s lives when something happens that strains the relationship. This is because they do not have any automatic legal rights or formal responsibilities for that child as a grandparent. These rights and responsibilities fall to those that have parental responsibility.
A person with parental responsibility is usually a parent, step-parent or an appointed guardian. Parental responsibility gives that person certain powers to make decisions for the child such as:
- Where the child lives;
- Medical treatment;
- Educational needs;
- Change of name; and
- Consent to leave the country for a holiday or permanently.
Although sometimes difficult for grandparents to see their grandchild, it is not impossible and options are available. As a grandparent you may be able to organise informal contact, apply for a Child Arrangements Order or, alternatively, apply for a Special Guardianships Order.
In the first instance it is always best to seek informal contact; you can do this by directly contacting the parent or if the child is in Foster Care you could speak to their Social Worker. That way you can demonstrate that you have tried all avenues to see your grandchild before getting legal advice.
If this fails and you would like to take matters to court, you must attend a Mediation Information and Assessment Meeting (MIAM) before making an application. A mediator will be able to tell you if another form of non-court dispute resolution would be appropriate before applying to court or not.
Child Arrangements Order
If you would like to obtain regular, structured contact with your grandchild you can apply for permission (leave) from the court to make an application for a Child Arrangements Order.
A Child Arrangements Order sets out:
- where the child is to live and with whom; and
- who the child spends time with and when.
If granted permission from the court, you would then be required to attend court hearings which would give you an opportunity to present reasons as to why you would like contact with your grandchild.
It is important to bear in mind however, that if a person with parental responsibility disagrees with you having contact with their child, they will also have an opportunity to provide their arguments to prevent you from having contact. The Judge will make the final decision based on the evidence provided, always with the child’s welfare as their first consideration.
A Child Arrangements Order would apply to grandparents who are going through a dispute with those with parental responsibility or whose grandchildren are in Foster Care.
Special Guardianship Order
If you would like to put yourself forward to care for your grandchild because their parents are unable to, you can seek to obtain a Special Guardianships Order.
A Special Guardianships Order gives you:
- Enhanced parental responsibility *
- Guardianship of the child until they are 18 years old; and
- Maintains a link between the child and the maternal/paternal family.
To be successful with this Order you will be required to undergo an assessment to ensure that the child will be safe in your care; this is known as a viability assessment. The court might be concerned about a child’s safety if there is a risk of harm towards the child as a result of child abuse or if there is an element of domestic violence between parents and/or their partners. The court’s first consideration is the child’s welfare and therefore any risk must be ruled out.
If there are Care Proceedings and you receive a positive viability assessment, your Solicitor can then ask permission from the court for you to become a “joined party”. A joined party has access to all the files relating to the matter including reports of the people involved, usually parents with parental responsibility and the children.
Once granted you may be able to apply for financial support from the Local Authority to assist with the upbringing of the child.
*Enhanced parental responsibility provides crucial differences to a Child Arrangements Order where the child lives with another person. For example, how long the child can spend overseas.
Funding your application to court
The Legal Aid Agency may be able to support you with funding however it is extremely difficult for grandparents to access this since the requirements are difficult to prove.
There are two criteria which must be satisfied: the means (finance) and the merits (circumstances of the case).
To be eligible for the financial element you either must be on a passporting benefit (Universal Credit, Income Support, Income-Related Jobseekers Allowance, Employment and Support Allowance and Pension Credit (Guarantee Credit)) or demonstrate that you have less than £733 disposable income after all expenses are paid. Expenses includes mortgage/rent payments, national insurance, tax and more. Your annual salary is also considered along with any savings and a valuation of your property if you have a mortgage.
The merits criteria require there to be an element of domestic violence between yourself and the respondent (for grandparent’s this would be a person with parental responsibility) or an element of child abuse. Both require substantial evidence and failure to provide this can result in you paying all the costs.
If you would like ‘advice only’ from a solicitor, and you can’t fulfill the required elements, you will be expected to pay a one-off fixed fee. Should you wish to proceed with a court application, further charges will apply.
Contrastingly, if the children are going through Care Proceedings you would need to satisfy the Legal Aid Agency that you had a separate arguable case and be financially eligible to secure public funding.
However, this is not always guaranteed and therefore it is always best to seek legal advice to ensure you know your options.