Grandparents may be able to obtain custody of their grandchildren in certain circumstances, which may be achieved by obtaining a child arrangements order, via special guardianship, kinship care or informally. It is also possible for grandparents to adopt their grandchildren, although this is rare.
Grandparents may be able to obtain custody of their grandchildren in certain circumstances, which may be achieved by obtaining a child arrangements order, via special guardianship, kinship care or informally. It is also possible for grandparents to adopt their grandchildren, although this is rare.
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Grandparent custody usually happens for one of several different reasons, such as when the child’s parents cannot care for them, the parent wishes the grandparents to care for the child, where the child has suffered abuse or neglect at home, when the parent is affected by mental health issues, or is addicted to illicit substances or alcohol. We take a look at the options available in turn and explain the differences.
Child Arrangements Order
A child arrangements order sets out where a child will live, who has contact with them, and for how long. Anyone with a child arrangements order in place will obtain parental responsibility for the child which will enable them to make decisions about things such as where they will attend school, and medical care.
A grandparent can apply for a child arrangements order without first obtaining permission to make the application provided the child has lived with them for at least three years. This does not necessarily have to be continuous, but must be no more than five years previously. Residence with the grandparent must not have ended within three months of the application. If the grandparent is unable to meet these criteria, they can still apply, but must first apply to the family court for “permission” to make the child arrangements order.
The court will base its decision on what is in the child’s best interests, taking into consideration the welfare checklist.
Special Guardianship Orders
This was introduced to bridge the gap between child arrangements and adoption orders to provide the child with a stable and permanent home without permanently severing ties with its birth parents.
A special guardianship order is often made when the child’s parents cannot work with the grandparents to make decisions in the child’s best interests. If the parents still have their own issues, it is often necessary for grandparents to step in without the parents. This can be problematic if the grandparent does not have parental responsibility.
If a child has lived with a grandparent for over a year, they are entitled to apply for a special guardianship order. It is becoming increasingly common for grandparents to make these applications, but to be successful, they must convince the court that the order is in the child’s best interests. The local authority will play an important role in the special guardianship process and, amongst other things, will be required to assess the need for any support services. Special guardianship assessments can take around 12 weeks to complete.
After a special guardianship order has been made, it gives the special guardian an enhanced level of parental responsibility for the child. Amongst other powers, the special guardian has the right to remove a child from the UK for a period of up to three months. Whilst it stops short of granting full adoption rights, a special guardianship order cannot be discharged by the birth parents without first obtaining the permission of the court.
Unfortunately, legal aid is not available for special guardianship applications. If a child has been placed with their grandparents by the local authority who have advised the seeking of such an order, it may be possible to get them to help with the costs and making representations at hearings.
How is a special guardianship order different to a child arrangements order?
A child arrangements order gives parental responsibility to the carer who is named in the order, and is shared equally with all those who hold parental responsibility.
A child arrangements order can specify where a child lives, arrangements for contact with other family members and other arrangements. Because parental responsibility is shared with others, the primary carer would need to consult with, and obtain the agreement of, the birth parents when decisions need to be made about the child on issues not detailed in the order.
In contrast, a special guardianship order gives the special guardian parental responsibility, which can be exercised to the exclusion of any other person, including the birth parents.
Whilst an application to discharge a child arrangements order can be made to the court at any time, special guardianship orders can only be considered for discharge if the court gives permission for the application to be made. The court will only consider granting permission to apply to discharge the special guardianship order if the parent can demonstrate a “significant” change in their circumstances. The case must also be seen to have a real prospect of success.
Kinship foster care
Kinship foster care is when a family member or friend becomes the child’s official foster carer. The child is “looked after” by the local authority who place the child with the kinship foster carer. The downside to this type of arrangement is that the grandparent will not acquire parental responsibility or be able to make decisions about the child’s day-to-day care, as this will remain with the local authority. Responsibilities are set out in a foster care agreement and placement plan with support given to meet the child’s needs. Carers in this type of arrangement will be offered foster care training and other support services.
For close relatives, such as grandparents, “formal kinship care” may also be considered as an option. This is a private arrangement, in which the local authority has no involvement, between the parents and grandparents, or other relative. The arrangement will continue as long as the carer and parents agree, although the local authority will not provide any additional support or help. Again, this could be problematic since the carer would not acquire parental responsibility.
Private foster care
Private, or informal fostering, is when someone who is not the child’s parent looks after them for 28 days or more. Private fostering arrangements are agreed between the parent and foster carer, and the local authority is not involved. As a private foster carer, someone may have to make day-to-day decisions for the child, but they will not have parental responsibility.
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