Obtaining greater care responsibilities for your grandchildren

Grandparents’ Day took place on 2 October 2022, celebrating the importance of grandparents in the lives of their grandchildren.

Most parents can rely on the support of their child’s grandparents in caring for or raising their child, and in some cases, grandparents become the primary carer for their grandchild as they grow up – they can become key figures in helping to raise their grandchildren.  

Depending on the situation, Family law solicitors can help with advising grandparents on how to make sure they have contact with their grandchild, or how a grandparent can become their grandchild’s carer.

The law recognises the importance of a grandparent’s role in a child’s life, and the ‘valuable contribution’ they can make. In this blog, we will consider two scenarios:

• When grandparents would like to establish contact with their grandchildren by applying for a Child Arrangements Order
• When grandparents would like to become their grandchildren’s primary carers through a Special Guardianship Order

Both of these orders can be made under the Children Act 1989.

Child Arrangements Orders

A Child Arrangements Order is a court order that dictates who a child will live with and/or who they will spend time with.

Before applying to court, it is important to remember that agreements can be reached hrough other methods, such as mediation. If this is not possible, however, a court order may be required.

What is a Child Arrangements Order?

A Child Arrangements Order is a court order that dictates who a child will live with and/or who they will spend time with.

Before applying to court, it is important to remember that agreements can be reached hrough other methods, such as mediation. If this is not possible, however, a court order may be required.

How can a grandparent apply for a Child Arrangements Order?

Grandparents do not have an automatic right to apply for a Child Arrangements Order. First, they have to apply for the court’s permission. The court has to consider three factors:

1. Why the application is being made (what has happened that has led the grandparents to make this application)
2. The grandparents’ connection to, and relationship with, the child
3. Any risks this application may have of disrupting the child’s life

If permission is given, a grandparent can then apply for contact with their grandchild. The main consideration for the court at this stage will be the welfare of the child, and whether it is in their best interests to have contact with their grandparent. The law sets out a checklist of factors the court has to consider:

• The ascertainable wishes and feelings of the child concerned (considered in the light of his/her age and understanding)
• The child’s physical, emotional and educational needs
• The likely effect on the child of any change in their circumstances
• The child’s age, sex, background and any characteristics that the court considers relevant
• Any harm that the child has suffered, or is at risk of suffering
• How capable each of the child’s parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting the child’s needs
• The range of powers available to the court under the Children Act 1989, in the proceedings in question

Special Guardianship Orders

In some cases, it is the grandparents who may be best placed to look after their grandchildren and be in charge of decision-making. If so, they can apply for a ‘Special Guardianship Order’.

How can a grandparent become a special guardian?

A grandparent is entitled to apply to become a special guardian for their grandchild if the child has lived with them for over a year. Otherwise, the grandparent will need permission from the court to apply.

What is a Special Guardianship Order?

A Special Guardianship Order means that the ‘special guardian’ has parental responsibility for the child. That is a key provision. Normally only the parents have parental responsibility and are therefore responsible for making significant decisions about their child’s life (such as where they will live, where they will go to school, or what medical treatment they should have). 

Importantly, special guardians are entitled to exercise parental responsibility to the exclusion of any other person who has parental responsibility for the child (apart from any other special guardian) – so they can make decisions without the parents agreeing. However, it is usually better to try and reach an agreement – again, mediation could help with this.

Special guardians will also be able to make day-to-day decisions for the child, without asking those who already have parental responsibility.

Special guardians are not, however, entitled to give a child a new surname or take the child out of the UK without either the written consent of everyone else who has parental responsibility, or the leave of the court.

Legal advice

A Family lawyer can advise about the best course of action. If social workers have already become involved in the child’s life, they may recommend that the grandparent could care for the child, and pay for grandparents to have legal advice to set this in motion. 

Support for grandparents

A number of charities in England and Wales offer support to grandparents in situations similar to the above:

• Kinship (formerly known as Grandparents Plus) is a charity that provides support to families: visit the website here 
• Family Rights Group advise parents, grandparents and other relatives and friends about their rights and options: visit the website here

Irene Karidas, paralegal in our Family and Matrimonial team, contributed to this article.