Not being allowed to have any contact with a much loved and cherished grandchild can be a very distressing time. If all attempts to try to try to resolve the matter through informal discussions and/or mediation with the parents have been exhausted then you may be contemplating issuing court proceedings. This may well be the first time that you have ever considered making an application to a court and it can often seem like a daunting prospect. This article is intended to provide a short summary to help you through that process.
Your application would be for a child arrangements order setting how much time, or contact, the child should be able to spend with you.
In such a situation as described above a grandparent does not have an automatic right to apply to the court for a child arrangements order under section 8 of the Children Act 1989 and will firstly need to seek the leave of the court to make the application.
The formal application will have to be made on what is called a form C100 together with a form C2 seeking the permission of the court. If it is being alleged that the chid has suffered or is at risk of suffering any harm from any form of domestic abuse, violence within the household, child abduction or any other conduct or behaviour then a form C1A will also be required. The respondents to the application will be the person with whom the child is living and anyone else who holds parental responsibility for the child.
The necessary forms can be downloaded from the government website: www.gov.uk/government/collections/court-and-tribunal-forms. You may also be able to apply online, depending upon where the children live.
In deciding whether or not to grant leave the court will have particular regard to the matters set out in section 10(9) of the Children Act 1989. These matters are:
- the nature of the proposed application for the section 8 order,
- your connection with the child, as applicant
- any risk there might be of that proposed application disrupting the child’s life to such an extent that they would be harmed by it, and
- where the child is being looked after by a local authority, the authority’s plans for the child’s future and the wishes and feelings of the child’a parents.
The court will also consider other matters that maybe relevant.
In considering the risk of disruption the court has to consider not only the risk of disruption from the making of the application but also the disruption to the child’s life if the application succeeded. Case law has determined that the risk of disruption that should be contemplated is the risk of disruption to the extent that the child would be harmed by it. ‘Harm’ has the meaning attributed to it by section 31(9) of the Children Act 1989; namely ill-treatment or the impairment of health or development which includes, for example, impairment suffered from seeing or hearing the ill-treatment of another.
The court will set a date for an initial hearing to determine if leave should be granted. This will usually just be decided by the court reading the application and hearing any submissions on behalf of the parties. If the application is successful then the court will usually direct the parties to file with the court and serve on each other the witness statements that they wish to rely upon. The court may also ask an officer from Cafcass (Child and Family Court Advisory and Support Service) to prepare a report on the application and to give their recommendations to the court.
The court may then list the case for a dispute resolution hearing to see if an agreement can be reached, and if that is not possible at that hearing then the case would be listed for a final hearing at which each of the parties and, if necessary the Cafcass Officer, will give their oral evidence to the court and a final decision will be made.
It is important to note that even if the application for leave is successful it does not create a presumption that a substantive order will be made at a subsequent hearing.
The overwhelming wish of a grandparent will be to see their grandchild as much as possible. However, I would caution against wanting too much contact as it will create an unrealistic expectation and may ultimately lead the court to reject the application. Be reassured that the courts are very much alive to the benefits to a child in growing up knowing his grandparents, but that the contact needs to be set at a realistic level. Of course, each case will depend on its own facts, but monthly direct (i.e. face to face) contact may well be achievable where the parties do not live too far apart; possibly more. In addition there can be some indirect contact (e.g. by letters, cards and presents).
At a final hearing the child’s welfare will continue to be the paramount consideration and the court shall have particular regard to the matters set out in section 1(3) of the Children Act, namely:
- the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding),
- his physical, emotional and educational needs,
- the likely effect on him of any change in his circumstances,
- his age, sex, background and any characteristics of his which the court considers relevant,
- any harm which he has suffered or is at risk of suffering,
- how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs, and
- the range of powers available to the court in the proceedings
A final order can be enforceable by the courts if the terms are not complied with by the residential parent.
Under the direct access scheme, barristers are able to offer advice and representation in respect of such applications to the court. An initial meeting can be arranged to discuss your particular circumstances and to consider if the case would be suitable for direct access. To arrange such a meeting, please contact any of my clerks on 01227 786331 or by email to email@example.com