Earlier this year, British mother Caroline Crouch was killed in Athens by her Greek father leaving a one-year-old baby girl, Lydia. Her father confessed and he remains in prison. Baby Lydia is now without her parents.
This tragic situation led to the Greek court granting the maternal grandparents temporary custody of her pending a permanent ruling on her future. It seems likely that she will remain at their home on the island of Alonnisos where Caroline herself was brought up.
Though the case will be decided in Greece, the case has brought to the fore the issue of the rights of grandparents in the context of the legal needs of children who have lost either or both parent through violence, separation or divorce.
Many grandparents in the UK will have watched this Greek tragedy unfold and pondered what their own legal position would be in similar circumstances. There may also be situations were grandparents are extremely concerned at their grandchildren’s safety, for instance, because of ongoing domestic violence, parents’ mental health issues or a serious drugs and alcohol problem in the home.
Practitioners will, of course, know that grandparents have no formal legal rights in relation to their grandchildren and may well have to apply to court to formalise situations where they take in their grandchildren.
That said, children themselves have the legal right to associate with family members and the courts will bear this in mind as one factor they are required to consider. A child flourishes with the love and support of wider family members; grandparents can often provide much-needed love and stability in the absence of parents. According to Grandparents Plus, 80% of teens say grandparents are the most important people outside of their immediate family.
Any grandparents who wishes to take on the formal care of a grandchild in the absence of both parents may decide to ask the court for a child arrangements order (CAO) for a Lives With order (“residence”) or special guardianship order (SGO) appointing them as special guardians. They may be considering adoption but in many situations, particularly where either or both parents have died, it will be too soon to consider such a permanent move. Courts very rarely sanction adoption in these cases, as it skews the child/family relationships, so SGO almost always done instead of adoption
Child arrangements order
Leave of the court will be required for a grandparent seeking to make an application for such an order under section 8 of the Children Act 1989. The child’s welfare will, of course, be paramount when the court considers the application. Where the grandparents’ application is allowed, parental responsibility will be granted to the named person/s.
Note that grandparents don’t have the ability to apply for a CAO as of right unless the child has lived with them for a set amount of time in recent years. Normally, permission will need to be obtained as part of the application process, which is almost always granted where there is a genuine pre-existing relationship. In some circumstances, it’s dealt with as a preliminary issue, but in these kind of cases it is usually dealt with alongside an urgent application for an interim CAO.
Special guardianship order
Grandparents, such as those who are already caring for grandchildren, can apply for an SGO, which is somewhat of steppingstone between a child arrangements order and an adoption order. Depending on the specific facts, leave of the court may be required to make an application (notice must also be given the local authority). Some SGOs can come with support packages which make them more attractive and harder to displace than a CAO
Importantly an SGO grants the holder of the order parental responsibility (PR) for the child/ren. Many grandparents go on to apply for an adoption order but, given that an SGO does not sever immediate family ties it means an ongoing relationship with any surviving/existing parent and siblings can continue.
It is not unusual to secure a CAO in place while waiting for an SGO to be granted. Practitioners may also be required to advise on the issue of applying for adoption in some circumstances.
Cara Nuttall, family law partner at Simpson Millar, says: “The court will often be persuaded to make the initial CAO urgently, because no one having PR for a child is deemed to be a risk. In fact, some social services can get involved if there is no one with PR, so will often support such steps. In some cases the LA will assist with the fees for an SGO, but certainly not in all cases.”