A guide for grandparents seeking contact and residence

This information is for grandparents who are seeking a contact order or residence order in respect of their grandchild or grandchildren and who believe they may need the Court’s assistance in doing so. It sets out the law and the approach of the Courts, followed by some helpful guidance on the procedure to be followed.  

Before you go to court

Taking the matter to Court should normally be the last resort for anyone seeking contact with a child or grandchild: it can be costly, time consuming, emotionally stressful and puts a lot of strain on family relationships.

In April 2011 the President of the Family Division introduced a Pre-Application Protocol for Mediation Information and Assessment whereby the majority of private law applicants are required to attend a ‘Meeting Information and Assessment Meeting’ to learn about family mediation and other forms of alternative dispute resolution. If, having attended this meeting with the person who is preventing you from having contact with your grandchild and it has not been successful, or where that person has refused to engage with any suggested form of mediation or dispute resolution then you will need to submit a Family Mediation Information and Assessment Form (FM1) to confirm your attendance/ giving reasons for non-attendance. Further information is set out in Practice Direction 3A of the Family Procedure Rules 2010. 

Making an application for a contact or residence order

Section 8 Orders

The legal framework that governs applications for contact and residence in respect of a child is set out in sections 8 – 10 of the Children Act 1989. Section 8 sets out the following definitions: 

• A contact order is an order requiring the person with whom the child lives to allow the child to visit or stay with the person named in the order, or for that person and the child otherwise to have contact with each other. A Contact Order may also say that no contact is to take place.
• A residence order is an order settling the arrangements to be made as to the person with whom a child is to live. 

Applying for a Section 8 Order

You are entitled to apply for a Section 8 order at any point: this may be during the course of existing family proceedings in which a question arises with respect to the welfare of the child (s.10(1)(a)) or it may be a stand-alone independent application (s.10(2)). Depending on the legal nature of the relationship you hold with your grandchild, you may either be entitled as of right to make a direct application to the court for a contact or residence order, or you may need to first apply to be joined as a party to the proceedings.  

Applying directly for a Contact or Residence Order

You are entitled to apply directly to the Court for a Contact or Residence Order in relation to a child if: 

• You are a guardian or special guardian of that child (s.10 (4)(a))
• You hold a residence order in respect of that child (s.10(4)(b))
• The child has lived with you for a period of over three years within the last five years (s.10(5)(b))
• You have the consent of all other person(s) who hold a residence order in respect of the child; all other person(s) who hold parental responsibility in respect of the child; or the Local Authority in circumstances where the child is in their care (s.10(5)(c)). 

Applying for leave to make an application

If you do not fall into one of the categories above then there are two stages to your application:

1. You must first apply to the Court for leave (or permission) to make the application for contact;
2. You may then make the application for a contact order.

It is the first stage – applying to be made a party to the proceedings and thereby having permission to make an application for contact or residence - that will be considered in further detail below: 

Application to be joined as a party

In exercising its discretion in deciding whether or not to grant leave the Court is under a duty to act in accordance with the Overriding Objective to deal with cases justly, having regard to any welfare issues involved. Case law reflects the courts’ approach to applications to become a party to proceedings: 

• Whilst the welfare of the child is an important consideration, it Is not paramount: the welfare checklist set out at s.1(1) of the Children Act 1989 does not apply as this is a case management decision rather than a decision of the court affecting the substantive outcome of the case 
• Where the application to become a party in existing proceedings is in order to then apply for a Section 8 order, the following factors set out at s.10(9) are applicable:
  
                    a) the nature of the proposed application for the Section 8 order;
                    b) the applicant’s connection with the child
                    c) any risk there might be of that proposed application disrupting the child’s life to such                           an extent that he would be harmed by it; and
                    d) where the child is being looked after by the Local Authority - 
                    i. the authority’s plans for the child’s future; and
                    ii. the wishes and feelings of the child’s parents.  
   
• The court will consider whether your application is ‘frivolous, vexatious or otherwise an abuse of the process of the court’;
• The court may consider your overall prospects of success: case law previously stated that the court should consider whether you have a ‘good arguable case ’ however that ‘standard’ has more recently been lowered so that the proper approach is to now consider whether the chances of success are ‘so remote that the application is obviously unsustainable ’ or ‘plainly hopeless’.
• Courts must be mindful of costs and delay and are unlikely to join parties to proceedings where they do not have independent or separate points of view to put across. Namely, if you are the sole person contesting another party’s application for contact or residence in respect of your grandchild then you would have a stronger chance of being joined as a party than if your application for contact or residence was already being put before the court by one of the parties to the proceedings.
• It may be preferable in the context of existing proceedings to apply to be an intervener to the proceedings on a specific issue rather than a full party. This would entitle you to see the case paper that are relevant to your application and would not require you to attend hearings that do not concern your application, thereby saving the court (and yourselves) time and money.  

The courts' approach to applications by grandparents

In the case of Re J (Leave to Issue Application for Residence Order)[2003] 1 FLR 114, the Court considered the application of a Grandmother to make an application for a residence order in respect of her grandchild that:
“…it is important that trial judges should recognise the greater appreciation that has developed of the value of what grandparents have to offer, particularly to children of disabled parents. Judges should be careful not to dismiss such opportunities without full inquiry.”

The Court in the case of B (A Child) [2012] EWCA Civ 737 was similarly concerned with the application of a Grandmother to be joined as a party to care proceedings in a desire to look after her grandchild. The Court agreed that they should give careful consideration to the value of what a grandparent could offer, such as keeping the child within the family, however it also stated that there were varying degrees of investigation required to explore the application whether it be a full hearing with reports and oral evidence, or a limited investigation by the Local Authority that uncovers overwhelming reasons why the grandparent’s application was not arguable. The mere fact of being a grandparent is not enough for an application for leave to apply to succeed. 

Procedure in applying

Where you are entitled to make an application for a contact or residence order directly to the Court without first seeking leave to apply then you should use Form C100 which may be obtained from your solicitors, from a Family Court, or downloaded the Ministry of Justice website (see Annex 1).

Where you must first obtain the Court’s permission to make an application for a contact or residence order then you should use Form C2 which may be obtained from your solicitors, from a Family Court, or downloaded the Ministry of Justice website (see Annex 1). Alongside the Form C2 you will be asked to provide three copies of your draft substantive application for contact or residence; if the Court grants you leave to apply it then already has your application before it and you do not need to submit anything further. Part 18 of the Family Procedure Rules 2010 sets out the procedure in full. 

Costs and Fees

Application Fee

Under the Family Proceedings Fees (Amendment) Order 2010 when an application requires the permission of the court the relevant Children Act 1989 fee is payable when permission is sought but no further fee will be charged if permission to make the relevant application is granted and the application is subsequently made. The current fee payable is £215. 

Legal Fees 

The Legal Aid, Sentencing, and Punishment of Offenders Act 2012 which came into force in April 2013 introduced changes to the provision of legal aid funding to certain categories of persons and proceedings. This included private law proceedings: where a grandparent may otherwise have been eligible for means or merits-tested legal aid to bring their application to Court that is no longer available except in very limited circumstances.

Many solicitors offer fixed fees for the work they do on a case. Ring up and ask for a free initial consultation. Be prepared to shop around, and be willing to negotiate. Solicitors run a business and so may be willing to come to an agreement over their fees. Barristers now can also see clients without a solicitor being involved (direct access) which can reduce you legal costs.

In care proceedings (where a local authority is involved and is seeking to take the child into care) a grandparent is not entitled to non-means or merits tested legal aid (unlike the parents of the relevant child) and must therefore finance any application they may make themselves (save, in some limited circumstances, where they have the support of the Local Authority). If a residence order is made in favour of the grandparent in care proceedings then will then be eligible for non-means or merits legal aid for as long as the residence order (and they accordingly hold parental responsibility for the child) is in force.

In Private law proceedings costs are not recoverable, save where another party has acted in a reprehensible manner such that you have unreasonably incurred more costs than you otherwise would. 

Enforcement of contact orders

If you have been granted a contact order by the court and the parent with care of the child refuses to allow your contact to happen, you are entitled to bring the matter back to court and ask for the contact order to be enforced. There will be a warning notice attached to the contact order that states: 

• If you breach the order you may be held in contempt of court and imprisoned or fined; and/or
• If you breach the order the Court may require you to undertake unpaid work and/or pay financial compensation.

Sections 11A – 11P of the Children Act 1989 give the court specific powers to impose directions and conditions on contact orders including:

i. Imposing a requirement on the parent with care for unpaid work;
ii. Compelling the parent with care (and in some cases yourself) to take part in a contact activity
iii. Making an order for additional contact to compensate you for the contact that you have missed;
iv. Making an order for the committal to prison of the person who is refusing to allow contact to take place;
v. Transferring the residence of the child to another adult (including yourself should you put yourself forward).

Unsurprisingly the court would only in very rare circumstances seek to enforce a contact order using the last two methods as they would invariably adversely directly affect the child. The second option, making a contact activity direction is the most broad and can be used to good effect where it directs that the parent with care (and in some cases yourself) engage in activities such as parenting programmes or classes to address the issue. If this method of enforcement is not effective you can return to court and ask that a more stringent approach is adopted. 

Child arrangement orders

In September 2012 the Government published Draft Legislation on Family Justice following on from the recommendations in the Final Report of the Family Justice Review . The proposed legislative changes to private law are, according to the explanatory notes, “intended to promote the resolution of disputes away from court wherever possible, to ensure that decisions made by the family courts about the arrangements for children following parental divorce or separation reflect the benefit to the child of maintaining the ongoing involvement of both parents in a child's life, and to streamline the court process for divorce or dissolution of a civil partnership.”

The main change relevant to Grandparents’ applications for contact and residence is the replacement of the 'residence order' and the 'contact order" by a ‘child arrangements order’ which can deal with the arrangements concerning who a child should live with, who the child should spend time with and who the child should have other types of contact with. According to the explanatory notes “the rationale for the new order was to "focus all discussions on resolving issues related to [the child's] care, rather than on labels such as residence and contact"

A grandparent will still need to seek the Court’s permission first before making an application for a ‘child arrangement order’ and so whether these legislative changes will have bring about much change in reality remains to be seen. The Family Justice Review did consider whether to remove the requirement for a Grandparent to first seek leave but in concluding that the need to seek leave should remain, it said:

4.45. We recognise the importance to children of relationships with their grandparents and recommend that this be emphasised in the process to come to an agreement about their future care. However we continue to feel that the requirement for grandparents to seek leave of the court before making an application is not overly burdensome and should remain.

4.46. As a matter of principle we agree with the many in the call for evidence who argued that just as contact is a right of the child not of the parents so also grandparents do not have a ‘right’ to contact. We noted in our interim report research showing that grandparents are unlikely to lose contact with a grandchild if they had meaningful contact whilst the parental relationship was still in being and if they resist taking sides after the separation. We do not believe that courts refuse leave unreasonably or that seeking leave is slow or expensive for grandparents. Rather, the requirement to seek leave prevents hopeless or vexatious applications that are not in the interests of the child. 

Annex 1 – Forms

Form C100: Application under the Children Act 1989 for a residence, contact, prohibited steps, specific issue section 8 order or to vary or discharge a section 8 order: http://hmctscourtfinder.justice.gov.uk/courtfinder/forms/c100-eng.pdf

Form C2: Application for permission to start proceedings/ For an order or directions in existing proceedings /To be joined as, or cease to be, a party in existing family proceedings under the Children Act 1989: http://hmctscourtfinder.justice.gov.uk/courtfinder/forms/c002-eng.pdf 

Annex 2 - Resources

Independent Sources

http://www.grandparents-association.org.uk
http://www.grandparentsplus.org.uk
http://frg.org.uk/ 

The following information is provided by Solicitors’ Firms:

http://www.grandparentrights.co.uk
http://www.whatisfamilymediation.com/news/mediation-for-grandparents/
http://www.grandparentslegalcentre.co.uk  

Other things you might like:

Grandparents' right to contact with grandchildren

The grandparent/grandchild relationship

Images: Shutterstock