The Family Justice Council has released new guidance on responding to a child’s unexplained reluctance, resistance or refusal to spend time with a parent and allegations of alienating behaviour.
Read moreAlthough it’s common for grandparents, social parents and extended family to be the primary caregivers for a child, the legal process to apply for parental responsibility can be complex. Here, Associate and family law specialist Joe Ailion explains what the application process involves.
What the law says about parenthood
There is a distinction between legal parenthood and parental responsibility for a child.
Parental responsibility refers to the legal ability to make decisions in respect of a child’s upbringing and welfare. Not every legal parent will have parental responsibility and not everyone with parental responsibility will be a legal parent.
The Children Act 1989 establishes a presumption that it’s in a child’s best interests to have both parents involved in their life. However, this doesn’t take into account that a child may well consider other figures as ‘parents’ who aren’t recognised as such under law. This could include grandparents, aunts, uncles, stepparents, adult siblings or any other special adults and caregivers in their lives.
What rights do extended family have?
The foundational principle of children law in England and Wales is key — the Family Court’s paramount concern is the welfare and best interests of any child.
This means that when asked to make orders about who should care for or spend time with a child, in theory the Family Court should be more flexible than what the legal technicalities allow — focusing on the reality of who the primary caregivers are and the benefit to the child of maintaining those relationships.
A legal parent or someone with parental responsibility can make applications to the Family Court for orders in respect of children without needing to apply for permission. In some circumstances, so can individuals who live (or have recently lived) with a child or been married/civilly partnered to a child’s parent. However, others will need permission to make an application to the Court. This often includes grandparents, relatives, family friends or other people involved in the child’s care that don’t live (or haven’t recently lived) with a child for a sufficient period of time.
While anyone can apply for permission to make an application, not all will be successful. The Court needs to consider the nature of the application, the connection to the child in question and any risk of harmful disruption to the child’s life should the application proceed (among any other relevant considerations).
What does a Family Court application involve?
It’s understandable that the simple need to apply for permission to the Family Court can be a source of frustration and upset for family members or anyone who cares deeply for the child involved.
Generally, the closer the connection to the child, the less likely that the Court may consider their application to be harmful and/or disruptive. However, whether or not the application will be successful depends on the child’s best interests. While this decision may require additional evidence and separate hearings, it will often be heard at the first hearing in the main application.
Furthermore, the meaning of ‘harm’ in this context has been interpreted by the Court to carry a high level of seriousness. At the ‘permission’ stage, the Court is concerned with a direct, significant impact on a child’s development or health should the application proceed. A broader assessment of the child’s best interests will be undertaken within the substantive application once permission is granted.
An important caveat is that the rules differ slightly between those who need permission for an order to regulate a child’s care arrangements versus those who can apply for other orders of the Court, such as determining a specific issue or prohibiting steps being taken in respect of a child.
It’s always important to take expert legal advice as to whether permission may be required for any application.
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