Please note this content was originally published in the Family Law Journal. January 2022 edition, best practice section.
Grandparents often play an important and significant role in a child’s life. The breakdown of the relationship between a child’s parents can have a devastating impact on the wider family, and grandparents can be concerned about the changes for the children, and in particular their relationship with their grandchildren.
This is an issue that arises is both public and private law proceedings. This column focuses only on private law proceedings.
The requirement for leave
If a grandparent wishes to make an application that their grandchild spends time with or lives with them, then, unless they fall within one of the exceptions set out in the Children Act 1989 ("CA 1989"), they must first obtain leave from the court to make such an application.
A grandparent will not require leave if:
- They have a residence order.
- The child has resided with them for three years.
- They have the consent of those with parental responsibility.
(Section 10(5)(c) CA 1989)
In addition, if the child has resided with their grandparent for one year and the grandparent is making an application that the child continues to do so (section 10(5B)), they will not require leave (although they would require leave to make an application regulating with whom the child spends time).
Where none of these exceptions apply, then the grandparent will need to apply for leave before making their application.
The application for leave
The procedure to be followed is set out in Part 18 of the FPR 2010 and PD 18A. To apply for leave, the following must be filed:
- A completed application for permission. This can be made on either Form C2 or Form C100.
- A completed draft of the proposed substantive application on Form C100 (plus Form C1A if appropriate).
- A draft of the order providing the applicant with permission to make an application for a s 8 order in the terms set out in the draft Form C100.
In addition, a statement may be filed in support of the application.
It is not necessary to attend a MIAM before making an application for leave (para 12(1), PD 3A). If leave is given, and a substantive section 8 application is made, then the requirement to attend a MIAM would apply, subject to any exemptions.
The application for leave must be made to the court where the substantive application would be made (FPR, r 18.2) (normally the court nearest the child’s home which deals with family matters). If there are ongoing proceedings in relation to the child, the application should be made to the court in which those proceedings are being heard.
The test for leave
In deciding whether to grant leave, the court will have particular regard to:
- the nature of the proposed application;
- the applicant’s connection with the child; and
- any risk that the proposed application might disrupt the child’s life to such an extent that he or she would be harmed by it.
(Section 10(9) CA 1989).
This is not an exhaustive list and other factors are likely to be relevant. In particular, it is now accepted that the court should also consider the merits of the substantive application.
The provision that the child’s welfare shall be the court’s paramount consideration under s 1(1) of the CA 1989 does not apply to applications for permission and nor does the welfare checklist. However, the child’s welfare can be relevant, in particular when the court is considering the merits of the substantive application and whether the applicant has an arguable case. (Re G; Re Z (Children: Sperm Donors: Leave to Apply for Children Act Orders)  EWHC 134 (Fam),  1 FLR 1334).
Applicant’s connection with the child: no presumption in favour of grandparents
There is no presumption in favour of granting permission to grandparents or to
any other class of relative. The more meaningful and important the connection is to the child, the greater is the weight to be given to this factor. Each case is determined on its own merits.
"Grandparents ought to have a special place in any child’s affection worthy of being maintained by contact but it is easy to envisage family circumstances, ...where, however loving the grandparent may be, life’s wheel of misfortune has diminished the importance to the child of that blood tie... The fact is that Parliament has refused to place grandparents in a special category... "
(Re M (Care: Contact: Grandmother’s Application for Leave)  2 FLR 86, per Ward LJ at ).
Merits of the proposed application
The applicant for leave will need to show that there is an "arguable case" (Re G; Re Z (above)). However, establishing that an arguable case exists is not, on its own, sufficient to obtain permission. The court will need to consider all of the relevant factors and it is possible that one of those factors may outweigh the presence of an arguable case.
The substantive application
Once leave has been obtained the grandparent is able to make their application under section 8 (having attended a MIAM where appropriate). It is important to note that there is no presumption that, following a successful leave application, the substantive application should be granted (Re G; Re Z (above)).
Once permission is granted, the child’s welfare is the paramount consideration and the welfare checklist applies.
Whilst it is this author’s experience that courts often look favourably on applications for contact by grandparents, especially where it can be demonstrated that there is a close bond between a grandparent and child, nevertheless these applications are fraught with difficulty. The legal costs of such an application can be significant (especially given the initial step of seeking leave) but the emotional impact can be even more significant, particularly if there are or have been proceedings between the child’s parents.
As ever, an application to court should be a last resort. It can take time for the dust to settle after a relationship breakdown between parents and for a new routine to become the new norm. If at all possible, it greatly assists a child (and indeed the grandparents and the parents) in most circumstances if the grandparents can remain neutral and not become involved in disputes between parents. If there are significant issues which need to be resolved, alternative methods such as family therapy and mediation should always be considered
If you require further information about anything covered in this briefing, please contact Sarah Hutchinson or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, February 2022