In our third blog in our series on grandparents’ rights, we consider how a grandparent can formalise their status as long-term primary carers for their grandchildren.
As we set out in our previous blogs, grandparents have no automatic legal rights of care over their grandchildren.
There are a number of situations where grandparents may wish to seek parental responsibility for their grandchildren.
- Where care proceedings have been issued and a local authority is considering removing a child from their parents’ care. It should be noted that grandparents are not automatically presumed to be alternative care providers.
- Similarly, on the death of both parents, there is no presumption that a child will automatically be placed in the care of their grandparents.
- Grandparents may also wish to obtain the legal right to make decisions for a grandchild that has been living with them because their parents are absent or otherwise unable to provide care for a period of time.
What is Parental Responsibility?
Parental responsibility allows an individual to make decisions regarding the care of a child.
Day-to-day decisions, such as what the child eats and what activities they can take part in, can be made by one person with parental responsibility acting alone.
However, some decisions need to be agreed by all persons with parental responsibility for the child before they can be carried out. These include:
- Changing a child’s school
- Changing a child’s religion
- Changing a child’s name
- Relocation
- Decisions around what medical treatment a child should receive
- Taking the child outside the UK
The biological mother of a child will be automatically granted parental responsibility; as will any person who is married to the mother at the time of birth. A father will also gain parental responsibility where he is named on the child’s birth certificate.
Extended family members – including grandparents – need to apply to court to obtain parental responsibility.
Options for grandparents who want to formalise their status as their grandchild’s primary carer
Child Arrangements Orders
Grandparents can apply to the Court for permission to apply for a Child Arrangements Order (‘CAO’). This can ultimately include seeking an order that a child live with them and would grant a grandparent parental responsibility.
If it has been ordered that a child is to live with a grandparent under a Child Arrangements Order (‘CAO’), the grandparent will be able to make most day-to-day decisions regarding a child’s care. They will be able to remove the child from the UK for up to one month without the consent of others with parental responsibility (subject to any conditions imposed by court order).
However, granting a CAO does not strip parental responsibility from those who already have it.The biological mother (and/or father) will continue to have an equal right to make decisions regarding the care of their child. This is important as certain decisions can only be made with the consent of all persons with parental responsibility.This includes removing a child from the UK for longer than one month as well as decisions around schooling and medical treatment.
Special Guardianship Orders
Special Guardianship Orders (‘SGO’) provide security for a child whose parents may be unable to care for them, whilst continuing to provide a link to their birth family. Such an order will last until they are 18 years old.
Grandparents may apply for an SGO if:
- Their grandchild has lived with them for at least one year immediately prior to the application being made
- They are the guardian of the child
- The child is in the care of the local authority and the local authority consent to the application being made
- There is already a ‘lives with’ CAO in the grandparents’ favour; or
- The court has granted permission for an application to be made.
If an SGO is granted, any existing care orders will automatically end and parental responsibility will be granted to the grandparent.
Unlike adoption, an SGO will only last until the child is 18, and the biological parent(s) retain parental responsibility for the child.
However, a special guardian can make most decisions on behalf of the child to the exclusion of all others with parental responsibility (other than another special guardian). This means that a special guardian can largely have the ‘last say’ over any issues regarding the child’s upbringing.
However, there are some decisions that a special guardian cannot make without consulting all others who have parental responsibility, including removing the children from the UK for more than three months and changing a child’s surname.
Adoption
A final option for grandparents who wish to care for their grandchildren permanently may be to consider adoption.
Unlike an SGO or CAO, adoption is a permanent and life-long arrangement that removes parental responsibility from those who previously held it.
Our family lawyers are experienced in issues relating to children law and are on hand to provide support to grandparents who need advice regarding the options available to them.
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