The disintegration of a family unit can be heartbreaking, but in many cases it’s in the best interests of everyone involved, most importantly the child.
When a child’s parents are unable or unwilling to take care of them the responsibility often falls to the grandparents, and if taking care of the child is feasible and it’s something that they wish to do, they can apply for a Residence Order or a Special Guardianship Order, the new legal terms for ‘custody’.
Children require consistency and stability to thrive and grow into happy, well-rounded individuals so it’s important that any grandparent considering applying for a Residence or Special Guardianship Order takes into account a few considerations before setting things in motion, most notably their health, i.e. how confident they feel that, taking into account their age, they’ll be able to take care of the child until he/she reaches adulthood.
However, if the child’s grandparents feel confident with regard to their age and health and they firmly believe that caring for the child is in his/her best interests, i.e. they can provide a consistent, loving and stable environment for the child to grow up in, they’ll need to seek legal counsel to help them apply for a Residence or Special Guardianship Order.
Parental Responsibility – What Is It and Who Can Apply for It?
Under UK law, mothers have automatic Parental Responsibility for their children and fathers, since 2003, share it whether they’re married or not.
Parental Responsibility is the legal responsibility for the welfare of a child and this is what grandparents seek when they apply for a Residence or Special Guardianship Order.
It’s important to understand that, although grandparents might be caring for a grandchild following a family breakdown, this doesn’t mean they’re automatically given Parental Responsibility for the child’s welfare since the only way it can be awarded to the grandparents is by their successful application for a Residence or Special Guardianship Order.
The Difference between a Residence Order and a Special Guardianship Order
Now that the term ‘custody’ is outdated, grandparents will need to decide if they should apply for a Residence Order or a Special Guardianship Order.
There are some differences between the two, most notably:
A Residence Order states who the child should live with and who has Parental Responsibility of him/her. When it’s in place, parents and grandparents share Parental Responsibility.
A Special Guardianship Order is a more secure arrangement because unlike a Residence Order, the parents don’t share Parental Responsibility of the child and will need to seek permission from the court to regain it.
In turn, a Special Guardianship Order is less secure than an Adoption Order because it doesn’t legally dissolve the relationship between the child and his/her parents.
Consequently, the most secure arrangement for grandparents seeking to be awarded Parental Responsibility of their grandchild is an Adoption Order which grants the grandparents all Parental Rights and Responsibilities.
However, in most cases this isn’t a requirement and many experts advise against it unless absolutely necessary because it often proves problematic and confusing for the child because his/her grandparents are now his/her legal parents.
The Need for Legal Counsel
There’s a very real need for legal counsel in such cases and grandparents considering applying for a Residence Order or a Special Guardianship Order must seek legal counsel from a solicitor well-versed in family law.
If they’ve been looking after the child for three years or more obtaining a Residence Order is rendered more straightforward, though they can still apply for one, or to become the child’s ‘Special Guardian’, despite living with and looking after the child for less time.
When the child’s parents don’t contest the grandparents’ decision to look after them the process is generally straightforward when they have a family law solicitor by their side; however, when they object to relinquishing care of the child to the grandparents it may become necessary to provide documentation and evidence to the effect that the child is in danger and that he/she should be removed from their care.
This is naturally very distressing for everyone involved, though naturally the welfare of the child must come first and to do that experienced legal counsel must be sought.
Author: Tegan Rowley is working on a freelance basis for a company that boasts of being more than just a law firm. Hanne & Co Solicitor Services strives to provide the same level of client care to all who transact with them.
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