By Oliwia Maliszewska LLB student
Seeking to maintain contact with grandchildren can be difficult due to grandparents typically lacking parental responsibility. If there is not a collaborative means of communication between the grandparents and parties with parental responsibility, or the matter cannot be resolved via mediation, it can leave such grandparents facing significant emotional turmoil at the loss of contact with their grandchildren.
There is still another avenue however, as it is possible to maintain contact with grandchildren via the court process. Nevertheless, we can appreciate that the family justice system is a daunting prospect for many, and the paperwork can prove to be a significant obstacle. Hence this article seeks to de-mystify the process by which grandparents can regain contact with their grandchildren.
Contact orders, which govern time spent with children in person as well as other forms of indirect contact such as, phone calls or letters come under s.8 of the Children’s Act 1989. Such orders are contained under s.8(1) as ‘child arrangement orders’. But since most grandparents do not have parental responsibility, there are further stipulations before applying to the court. This is called ‘leave to make an application’- all this means is asking the court for permission to file an application. The reason for grandparents being required to do this is the fact that grandparents are only generally permitted to apply for ‘guardianship’.
The relevant exceptions to having to apply for leave
Luckily the process is easier than it may sound. Firstly, in factually complicated cases it is important to first ensure that you do not fall into one of the permitted exceptions for making leave. The exceptions are:
(i) Having a residence order,
(ii) The (grand)child concerned has resided with you (the grandparent) for over three years,
(iii) Having the consent of those with parental responsibility (most likely the mum and/or dad).
How do the courts decide whether to grant leave?
If none of these exceptions apply, you will be required to apply for ‘leave’. The process for this entails filling out a C100 form asking for leave to make an application. Guidance from the Government on grandchild-grandparent contact suggests that filling in section 5a of the C100, asking for leave will suffice.
Applications for granting leave will be considered by the court by means of three variables:
(i) The merits of the application,
(ii) The applicant’s connection to the child,
(iii) The risk of disruption of not only filing the application but to the child’s life if the application is to be successful.
But what does this actually mean? Merits of the application entail a judicial analysis of how beneficial contact will be for the child. For example, in the case of Re M (Care: Contact: Grandmother’s Application for Leave), some factors considered included the children’s need for stability, the importance of the connection with the grandparents to the child and the nature of the contact applied for.
The applicant’s connection to the child, can be boiled down to the strength of the bond between child and grandparent, but also interestingly gives rise to the court being able to consider the type of contact already in place. This was particularly important in the case of Re H (Leave to Apply for Residence Order) as the half-brother in this instance, only had communication with the child concerned via indirect means such as telephone calls, but nevertheless, upon evaluating the connection between the applicant and the child it was clear that it was necessary for the two of them to be involved in each other’s lives.
Disruption to the child’s life pertains to routine and day to day life that may be adversely impact if the application is successful. Now there may be same concerns arising for those grandparents concerned that their application may be rejected on this point considering they have struggled to come to an agreement with those having parental responsibility. However, it is important to note that the court will evaluate disruption based on the ‘harm’ to the child, thus centring on the child’s interests.
Filling in your C100- how to ask for leave
As aforementioned, the application for leave is featured in section 5a of the C100 and most importantly, even if an applicant is granted leave and allowed to be filed- there still will need to be a decision made by the court regarding the actual application for contact. Section 5a, is one of the three parts of section 5 which we will break down here:
(i) Section 5a simply asks whether you have applied to the court for permission to leave. If you have applied via another form, you can tick Yes, if you are privy to one of the exceptions you can tick No-not required and if you are applying for leave via the C100 form you can tick No-permission sought now. This is then followed by a statement for reasons why permission is required under which it can be input that permission is required courtesy of being a grandparent along with any other relevant details.
(ii) Section 5b asks for a brief summary of the reasons for application. What can be included in this section is: what it is that you are asking the court to do regarding the matter of contact i.e., grant an order allowing for in-person contact, and/or the reasons for making this application.
(iii) Lastly, section 5c merely asks for confirmation on whether you have previously prepared a Parenting Plan. As it is typical in such proceedings to first go through mediation, the court asks this in order see if you are aware of what a Parenting Plan is. It is not a concern if you have not filled one out before, as the application simply requests you download a copy to have a look at.
Hopefully, the demystification of this first part of the application process is helpful to those settling into the process.
Written by Oliwia Maliszewska, Legal Assistant at Brady Harvey Legal. She is in her final year of an LLB Degree, pursuant of a First-Class Honours from Lancaster University.