One of the joys of life is playing a part in the life of your grandchildren and seeing them develop and grow, and the importance of this relationship is incredibly beneficial for both child and grandparent. Having access to our grandchildren cannot be taken for granted, however. This is because, unlike with our children, we have no automatic right in law to see our grandchildren. Hence, in the event of familial discord between the parents of grandchildren, grandparents can often be left out in the cold. This can be particularly distressing at Christmas when families are traditionally able to come together.
While grandparents do not have an automatic right of access, they do have legal options available to them in accordance with the 1989 Children’s Act, and with the appropriate advice from a family law Solicitor, it is possible to gain access through the courts.
What is a Children Act 1989 section 8 order?
Section 8 of the Children Act 1989 (CA 1989) relates to ‘child arrangements orders’ and provides a legal mechanism to allow grandparents to gain access to their grandchildren through the courts. As section 8 states, ‘child arrangements order’ refers to “an order regulating arrangements relating to any of the following—
(a) with whom a child is to live, spend time or otherwise have contact, and
(b) when a child is to live, spend time or otherwise have contact with any person.
Under section 8 of the CA 1989, courts have the power to issue three different types of order on behalf of grandparents seeking access to their grandchildren, including:
- Child arrangements orders (CAO) – these were previously referred to as ‘residence orders’ and ‘contact orders’ and enable the courts to make decisions on when and with whom a child will live, spend time or otherwise have contact.
- Prohibited steps order (PSO) – whereby the court is able to restrict certain actions from being taken by a person with parental responsibility (PR) in respect of a child without first gaining permission from the court (e.g. a PSO may restrict the child from leaving the country)
- Specific issue order (SIO) - an order issued by a family court in relation to a specific matter they have been asked to decide on in relation to a child.
Please note – there are legal options other than Section 8 orders depending on the circumstances of the case, including Special Guardianship Orders (where the applicant is appointed as a Special Guardian until the child reaches the age of 18), becoming a foster carer, and adoption.
Following the pre-action process before seeking a Section 8 order
In the context of section 8, any ‘relative’ is able to request an order; this includes grandparents, brothers, sisters, uncles, aunts, and step-parents. Before applying for a section 8 order, the court will expect the prospective applicant to have attended a Mediation Information and Assessment Meeting (MIAM) in accordance with section 10(1) of the Children and Families Act 2014. This is to ensure that asking the court to make a decision is the last course of action and that mediation, which is undertaken outside of the court system with the assistance of an impartial mediator, has at least been considered.
We recommend using Alternative Dispute Resolution (ADR) methods such as negotiation and mediation as the first port of call if you have been unsuccessful in finding a solution to any grandchild access concerns directly with the parent/s. Family Law Solicitors are highly experienced in ADR methods and can guide you through this process. Not only are ADR methods highly effective, but they tend to preserve the relationship between the parties, more so than when the courts get involved.
Can a grandparent apply for a Section 8 order without the permission of the court?
In most cases, grandparents will need to seek permission from the court in accordance with Part 18 of the Family Procedure Rules 2010 (FPR), before being able to apply for a section 8 order; this may not be the case if they:
- Are the child’s guardian, special guardian, or if they have parental responsibility
- Are already named on a CAO as the person with whom the child will live
- A person with whom the child has lived for a period of three years (not necessarily continuously but over the last five years)
- Have the consent of each person named in the CAO as the person with whom the child is to live
- Have the consent of the local authority where the child is in local authority care.
- Have the consent of each person with parental responsibility for the child.
What will the court take into account when deciding on a Section 8 application?
Ultimately, the judge will always take into account the best interests of the child, in addition to:
- The reasons behind the proposed application for a section 8 order
- The applicant’s connection with the child
- Any risk there might be of the proposed application disrupting the child’s life to such an extent that they would be harmed by it
There is no presumption that a child having contact with their grandparent is in the child’s best interest (this does not mean they don’t recognise the value of the relationship); hence the reason why it is must be clearly explained and justified in the application.
When seeking an order from a family court in respect of arrangements between children and their grandparents, the involvement of an experienced family law Solicitor is a must. They will explain the legal position of the applicant, recommend ADR methods where appropriate, recommend the most suitable type of order if ADR does not effect a resolution, and handle the application process, including providing sufficient details and evidence to satisfy the courts based on previous cases and the latest best practice.
Guillaumes LLP Solicitors is a full-service law firm based in Weybridge, Surrey. We have a highly experienced family law team who can assist you with all matters relating to access rights for grandparents. To make an appointment, please call us on 01932 840 111.