Grandparents in lockdown

The COVID-19 lockdown and social distancing exposed something that we have always known as a society; children need to experience a relationship with grandparents, where possible, and, grandparents often need the joy and love from their grandchildren in the winter of their years. It is a social structure as old as mankind has been grouping together in tribes. It is a concept that binds nations, races, cultures, religions and genders.    

This short article will consider what options are available to grandparents seeking contact with grandchildren. It must be remembered that the observations in this article are not designed to address any social distance between family members as a consequence of the current Public Health crisis. This article considers the traditional arrangements where grandchildren live with their parents. 

With all of the phone calls and emails relating to “live with,” “spend time with” orders, s.31 orders etc, it is easy for practitioners to cast grandparent applications to the dusty corners of our minds. Perhaps relegated to the same place as memories of restaurants, shopping and yoga classes?! 

This note is designed to be a quick reference guide for inquiring grandparents and legal advisors.

Grandparent “leave”   

Grandparents may make an application to “spend time with” a grandchild. Grandparents will require “leave”(permission) of the court to make the substantive application.  The application for leave process requires: 

1. ‘an application notice in Form C2, which must briefly state why leave is being sought (unless the court dispenses with the need for a notice);  
2. a draft of the proposed substantive application in Form C100, with sufficient copies to be served on each respondent;  
3. a draft of the order sought;  
4. a copy of any written evidence in support of the application.’ [1]

 When the court receives the application it may be deal with it “on paper” by refusing leave immediately. If this occurs, the applicant grandparent may request an oral hearing. [2]

If the court lists the application for a “leave” hearing it will serve a copy of the documents on the applicant (grandparent) and each respondent. Each parent with PR will be served. [3] The notice will provide the date, time and location of the first hearing.   

The court will consider the application using the s.10 (9) test: 

1. the nature of the proposed application for the s 8 order;
2. the applicant’s connection with the child;
3. any risk there might be of the proposed application disrupting the child’s life to such an extent that he would be harmed by it; and 
4. if the child is being looked after by a local authority:   
5. the authority’s plans for the future; and 
6. the wishes and feelings of the child’s parents 

‘Re B (Paternal Grandmother: Joinder as Party) [2012] EWCA Civ 737, Black LJ reviewed the authorities and offered a description of the approach by the court, stressing: 

• s 10(9) does not contain a test, but simply identifies some factors which require particular regard; 
• having an arguable case may not be sufficient to justify granting permission; 
• the court has a wide discretion as to the stage at which the application is determined and the amount of evidence required in order to do so; there is no absolute entitlement to an assessment prior to determining the application.’ [4]

If the court grants leave, the substantive application for contact will proceed.  The substantive application will then go on to direct a CAFCASS safeguarding letter, written statements of evidence, and, any other case management directions, before going on to consider the full application.  

References

 [1] Hershman and McFarlane, [606]

[2] FPR r 18.9(2).

[3] Generally, a parent without PR will usually be added as a party to the proceedings at the first case management hearing

[4] Hershman and McFarlane, [611]

Written by Kerri O’Neill, Consultant Barrister